England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		21 October 2005

1. MR JUSTICE SULLIVAN: In this application for judicial review, the claimant, who is the Director of the Campaign for Planning Sanity ("the Campaign"), challenges the defendant's decision not to afford the claimant an opportunity to claim a grant on behalf of the Campaign under section 304A of the Town and Country Planning Act 1990 ("the Act"). Section 304A was inserted into the Act by section 115 of the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") as from 13 May 2004. So far as material, it provides that the defendant:

"may make grants to any person for the purpose of assisting any person to provide advice and assistance in connection with any matter which is related to-

(a) the planning Acts [as defined in section 336(1) of the Act, the 2004 Act, and various other planning enactments.]"

By virtue of sub-section (4), "person" includes a body, whether or not incorporated. Campaign provides advice and assistance on town and country planning issues, and there is no suggestion that it would not be eligible for a grant under section 304A if the defendant was minded to make one to it.

2. On 6 July 2004 the claimant wrote to the defendant saying:

"Could you please inform us of the intended criteria and procedures you intend putting in place for those seeking assistance under section 304A of [the Act]."

3. Following chasing letters on 1 September and 17 October, Mr Tritton, the Head of Planning Directorate Support Team in the Office of the Deputy Prime Minister ("ODPM") wrote on 3 November saying:

"The section of the Planning and Compulsory Purchase Act that you refer to in your letter is enabling legislation. This means that if the ODPM wants to make grants to organisations for advice and assistance, this section of the Act provides us with the legal authority to do so. However, at the present time, the ODPM has no plans to make any grants under the terms of this legislation. We will keep your letter on file and forward application details should the position change in the future."

4. The following day Mrs Wetterstad, a Policy Adviser in ODPM, e-mailed the claimant saying:

"You have asked about obtaining a grant under section 115 of the Planning and Compulsory Purchase Act 2004, the section which allows the First Secretary of State to give grants to bodies which provide advice and assistance to members of the public on the planning process.

Helping the public to become involved in the planning system is an important part of the Government's planning reform agenda. With professional help and advice, residents and community groups can play a central role in improving their neighbourhoods. Section 115 of the Act gives us the scope to provide grants to achieve this, and we are using the funds to support the Planning Aid service established by the Royal Town Planning Institute.

This follows a recommendation in the Environment Transport and Regional Affairs Committee's report on the Planning Inspectorate and Public Inquiries (published in July 2000) that the Government fund a more extensive Planning Aid service. In the light of the recommendation, research was undertaken to identify and cost a preferred option for delivering a more comprehensive Planning Aid service in England.

The research report suggested that there was a clear demand for Planning Aid and recommended that it become more proactive. It should target those who usually do not get involved in the planning system: in particular, groups in deprived areas, and groups representing the socially excluded. Further to the Select Committee recommendation and that report, a bid was made to HM Treasury for funding to assist Planning Aid until the end of the financial year 2005/06.

I am sorry to say that ODPM does not have money set aside for the provision of assistance under section 115 other than that secured specifically for Planning Aid. It is therefore not our intention to set up a grant regime, and we have no plans at present to bid for additional funding to benefit other service providers in this field."

The claimant was not satisfied and further correspondence ensued. In due course the claim in these proceedings was filed.

5. The claim form alleged, in summary, that the manner in which grants had been allocated under section 304A was discriminatory and unfair. In granting permission on the papers, Collins J said:

"I do not think the discrimination point is particularly good, but there should arguably have been greater transparency and information in setting on who should have grants, and the responses of 3 November and 4 November are inconsistent. The Act is in general terms and there is arguably no reason to go to Hansard."

6. Following the grant of permission to apply for judicial review, the defendant has served detailed grounds of opposition, supported by a witness statement of Mr Davis, the Head of Branch in the Planning Development Control Division in ODPM. For present purposes it is unnecessary to set out the genesis of section 304A in great detail. The following summary will suffice. Planning Aid is a voluntary service operated under the auspices of the Royal Town Planning Institute. It provides free, independent, professional advice and support on town planning matters to groups and individuals who cannot afford to employ a planning consultant.
7. In July 2000 the House of Commons Environment Transport and Regional Affairs Select Committee recommended that the Government should fund a more extensive Planning Aid scheme. The Government's response was sympathetic and ODPM commissioned a study from the RTPI which was published in February 2003. Meanwhile, in December 2001 the Government had published a Green Paper, "Planning Delivering a Fundamental Change", which said that the aims of Planning Aid were fully supported, and that the Government was "working with the RTPI on ways in which the service can be expanded and, subject to the introduction of necessary statutory powers, better funded".
8. Campaign responded to the Green Paper. Commenting on the funding proposals contained in the Green Paper, Campaign said:

"... funding for community groups can be a positive way of ensuring public confidence. However we need to stress that there should be no long-winded scheme for allocating funds, or limitations on the groups available to receive funding ... We doubt that the proposal to solely fund the good work of Planning Aid will be able to cope to the degree envisaged ... If such a scheme were to be implemented it would need to incorporate a wide range of advisory groups, professional consultants and government bodies ... However we doubt if the Government would approve the high cost of this. It is our view that the final scheme will make big noises, and will allocate funding to a few select groups who cannot possibly cater for the real needs of the community, in other words there will only be lip service paid to an advisory service for local residents and communities, whilst the right to make representation without using those funded groups would be reduced ... [Campaign] welcomes the advice offered by Planning Aid to local communities. [Campaign] would hope that we would be given an opportunity to make our case for similar funding."

9. Following the consultation exercise, ODPM published its policy response statement "Sustainable Communities: Delivering Through Planning" in July 2002. Paragraph 61 of that policy statement said:

"The Planning Green Paper also outlined our intention to help individuals and community groups to develop advocacy skills and to have better access to quality training and planning advisory services. We intend to take powers to provide financial assistance to Planning Aid (emphasis as in original)."

10. The Green Paper did not contain any figures, but on 5 February 2003 ODPM published an Action Programme which stated that it was proposed to "grant Planning Aid (nearly £4m over the next three years) to help communities become more involved in the planning process". Later that year, on 6 November, the Minister for Housing and Planning made a written ministerial statement about Planning Aid. The statement explained:

"Planning Aid is the provision of free and independent professional advice on town planning to groups or individuals in need of such advice and who cannot obtain it without an aid service. It is currently funded by the Royal Town and Country Planning Institute(sic) and by grants and donations from the public, private and charitable organisations but it is significantly under-resourced and stretched in respect of its current role. On 5 February 2003 the Deputy Prime Minister announced in "Sustaining communities: building for the future" that Planning Aid would receive up to £4m of Government funding over the next three years to expand its service.

The enabling legislation supporting wider Office of Deputy Prime Minister spending on planning aid is contained in the Planning and Compulsory Purchase Bill ..."

11. Section 304 of the Act enabled the defendant to make grants in the planning field for certain limited purposes "for assisting establishments engaged in promoting or assisting research relating to and education with respect to the planning and design of the physical environment". It was therefore recognised that new powers would be needed to enable the defendant to make the proposed grant to Planning Aid.
12. The relevant clause in the Planning and Compulsory Purchase Bill was more widely drafted to enable the defendant to make grants to other bodies providing advice and assistance on planning matters to the public. During the course of the bill through Parliament, an amendment was agreed which deleted the requirement that the advice and assistance had to be provided to 'the public'. Thus, as enacted, section 304A gave the defendant somewhat wider powers to make grants to bodies which gave planning advice and assistance not to the public generally, but to particular sections of it: for example, to the local access groups who liaise with developers and local authorities to ensure that buildings are designed to meet the needs of the disabled.
13. It is one thing to have a legal power to make a grant; it is another thing to have the public funds available to be able to do so. In 2002 the ODPM sought funding through the normal departmental spending review process. Treasury agreement was secured and, as mentioned above, the defendant announced in February 2003 that Planning Aid would receive up to £4 million by way of grant assistance over the next three years to enable it to expand its service. Because the passage of the Bill was delayed, arrangements had to be made to make advance payments out of the Department's contingency fund. But it is not in dispute that once section 304A was enacted, the defendant did precisely what he told Parliament and the public he would do, that is to say he committed £4 million worth of grant to Planning Aid. Following the 2004 spending review process, that funding was continued beyond 2005/06 with a further £3 million for 2006/07 and 2007/08.
14. In addition to Planning Aid, one other organisation has received funding under section 304A, the Planning Advisory Service, which advises local authorities on best practice to assist them in delivering a more effective planning system. The details are set out in Mr Davis' witness statement. Again, it is clear that the intention to establish a Planning Advisory Service, and then to fund it, were publicly announced by the defendant in the Green Paper, and then by the Chancellor in his Budget Statement 2003, respectively. This detailed background information was not available to Collins J when he granted permission to apply for judicial review.
15. It is clear, in the light of this further information, that there was public consultation about the proposals, and that the process has been transparent throughout. The defendant has made his intentions as to why he wanted the new power now contained in section 304A, how he proposed to use it, who would receive grant assistance, and how much, plain throughout.
16. Mr Maile, who has appeared in person and has presented his arguments with care and courtesy, submitted that the defendant had acted irrationally because it was irrational for him not to have considered Campaign's application for funds. Campaign came within the ambit of section 304A, thus it was entitled to ask to be assisted by way of grant. Essentially Mr Maile submits that the defendant should have permitted him to submit an application, setting out in detail why he contended that Campaign ought to be assisted by way of grant under section 304A. Instead, he submits that the defendant simply closed his mind to that possibility.
17. The problem with Mr Maile's submission is that the power to make a grant or grants under section 304A is discretionary. I am prepared to accept as a very general proposition that this discretion, as with any other statutory discretion, must be exercised fairly. What fairness requires very much depends upon the particular factual circumstances of the case. Given the history that I have summarised above, I am satisfied that there is no question of unfairness here. As I have indicated, the defendant used the statutory power precisely as he always said he would.
18. Although discrimination was alleged in the claim form, the claimant does not criticise the grant that has been made to Planning Aid, and indeed does not criticise the expertise of those who provide assistance and advice on planning matters under the aegis of Planning Aid. Suffice it to say there were perfectly rational reasons which entitled the defendant to conclude that Planning Aid was worthy of being supported by a grant.
19. Mr Maile's submissions would perhaps have had some force if there remained some money in the section 304A pot which was available for distribution to other groups providing planning aid and assistance. But the short answer to his complaint is that there is no money in the section 304A pot in the Department's accounts, and there was no money when Campaign made its inquiry in July 2004. There was no money in the pot because the defendant had either given, or was committed to giving it, to Planning Aid in accordance with his publicly announced intention following consultation. That was not in the least unfair since the defendant had made his intention manifest from the outset.
20. Mr Maile submits that the defendant could go back to Parliament and ask for more money, but it is plain from the e-mail of 4 November 2005 that, as a matter of policy, the defendant has no wish to go back and ask Parliament for more money for the section 304A pot. Whether it is appropriate to seek Treasury support for further funds and then to make an approach to Parliament to seek to persuade it to vote further funds for this purpose are pre-eminently matters of judgment for the defendant, who has to weigh up the competing demands for funds in a large Government department. In practice, the irrationality threshold in respect of such a discretionary decision would be very high indeed, even if it was assumed that it would be appropriate for the court to consider such issues, bearing in mind the necessary involvement of Parliament in refusing the requisite funds. But it is sufficient to say for the purposes of disposing of the present case that no question of irrationality arises, not least because the defendant has publicly stated the sums that he considered appropriate to disburse by way of grant under section 304A.
21. Mr Davis amplified the position as set out in the e-mail of 4 November 2004 in paragraph 41 of his witness statement:

"As I have sought to explain, the power contained in section 304A of the 1990 Act was specifically sought in order to enable the ODPM to make a grant to Planning Aid. The current policy of the ODPM is to make no further grants to bodies other than to Planning Aid or the Planning Advisory Service at present. There are many calls on ODPM's limited funds, which are allocated carefully after agreement has been reached with the Treasury. ODPM's only current resources from the Treasury for funding under what became section 304A of the 1990 Act are for Planning Aid and the Planning Advisory Service. ODPM is currently satisfied that Planning Aid and the Planning Advisory Service provides sufficient support for users of the planning system. ODPM is currently satisfied with the service which they are providing. It has no present plans to make any further award of grants or to set up any form of fund or scheme under which further grants may be awarded to other organisations under section 115. The service delivery by Planning Aid and the PAS is, however, subject to review by the ODPM. Moreover, the ODPM has not precluded making further grants should circumstances change in the future."

While the claimant is perfectly entitled to disagree with that policy, it cannot possibly be said to be in any way unreasonable or unlawful.

22. Finally, Collins J was concerned when granting permission about the apparent inconsistency between the departmental responses of 3 and 4 November 2004. Mr Davis explains what occurred in his witness statement. Mr Tritton is the head of a team that deals with finance issues. He replied to the claimant's letter of 17 October because it was perceived as dealing with a financial issue. The other reply of 4 November was sent by a member of Mr Davis' team because it has policy responsibility for Planning Aid. It would seem that the left hand in the Department did not know what the right hand was doing, so that the policy team did not know that those dealing with finance issues had already replied to the claimant. In any event, although the wording in the two responses is not the same, in substance the position of the ODPM is clear, that is to say: it did not have funds available other than for Planning Aid.
23. Since it was not going to be bidding for further funds from the Treasury to make additional grants under section 304A, it was not intending to set up a grant regime mechanism. Since the section 304A cupboard was bare, it would have been pointless to ask the claimant to waste his time filling in an application which was bound to be refused. The claimant's real complaint is that something should have been left in the cupboard so that the defendant would have been in a position to consider the merits of an application from Campaign or some other similar body. But the short answer is that it was for the defendant to decide how much to put in the cupboard, subject to securing Treasury support and Parliamentary approval, for that expenditure.
24. For the reasons set out above, there was no unfairness or lack of transparency in the manner in which the defendant decided how much public money should be put into the section 304A cupboard and who should be paid out of it. For these reasons, this application must be dismissed.
25. MR SALES: My Lord, I have an application for my client's costs. In the letter before action written on behalf of ODPM, it was made very clear that costs would be sought at the end of the process. That is at the foot of page 26 in my Lord's bundle.
26. MR JUSTICE SULLIVAN: Is this a letter from the Treasury Solicitor?
27. MR SALES: Yes, it is the response to the letter before action from Mr Maile. The letter does not have internal pagination.
28. MR JUSTICE SULLIVAN: I have it.
29. MR SALES: It is the penultimate page and it is right at the bottom of the page.
30. MR JUSTICE SULLIVAN: Yes, "In the circumstances should you choose to proceed ... " You threaten they will be defended and ODPM will seek its costs.
31. MR SALES: Yes. My Lord, we have prepared a summary assessment costs form, which I hand up. My Lord should note that this is actually a considerable underestimate of the actual costs involved, but nonetheless my clients do ask for a summary assessment in this amount because that would be the simplest and most direct way to get an order from the court. Can I indicate on the second page of it, in the box at the bottom, you will see my learned friend Mr Ward's fee is set out. This is one area where the underestimate comes in. You will see that there is nothing there for the letter before action, the summary grounds, the detailed grounds, and, according to this, the drafting of the witness statement took him about 20 minutes at a very small rate. I am not asking for more money, I am just indicating that this is actually a sum of money which is a considerable underestimate of the actual costs.
32. MR JUSTICE SULLIVAN: When you say it is an underestimate, not a charge for Mr Ward in terms of summary grounds, settling the witness statement and so forth, what might be said is that, in the light of the observations of Collins J, there were arguably legitimate concerns about transparency and consistency of response, at least up until such time as detailed grounds in Mr Davis' witness statement were supplied, so that members of the public could reasonably, as it were, press on until they got that. Having then got that, then one can fairly say: well, everything was made absolutely clear as to what had happened and a reasonable litigant would then have drawn back and said: no, obviously I have to put my hands up now everything has been explained to me. First of all, would there be a method of drawing a line under, as it were, costs after that event, which effectively is pretty much the costs of today, I suspect. But that might be a possible approach.
33. MR SALES: It might be, my Lord. I would make three points as to the correctness, just to respond to my Lord's question on the facts. Yes, I am sure it would be. Not on this document. That would require us to go away and look at the breakdown of the costs overall.
34. If I can make my three points in response to what my Lord is putting to me. First of all, the position in the Administrative Court is the same as elsewhere. It is that costs follow the event. It is not a test of whether it was reasonable for an individual to go on with a claim. It is often reasonable for people to press on with claims, but at the end of the day the costs regime applies to safeguard the interests of those who win. Secondly, in my submission, looking at the letter before claim and at the summary objections, the point was always being made -- and indeed at the response from the Secretary of State at the outset -- the response was always being made: we do not have the money to provide you with what you want, and that is essentially the basis on which we have succeeded today. So it is not as if there was a new basis on which we have succeeded today, introduced today for the first time in my skeleton argument. My skeleton argument just puts the --
35. MR JUSTICE SULLIVAN: The cupboard is bare point in legal terms.
36. MR SALES: Absolutely. My Lord, that is my second point. My third point has gone completely out of my mind. But at all events, we would say it would be wrong in principle for my Lord to try to divide things up in that way. But, of course, in the alternative, if my Lord is against me on that, then at least we must have those costs.
37. MR JUSTICE SULLIVAN: What do you want to say, Mr Maile, about costs?
38. CLAIMANT: First of all, I never got the costs breakdown until the break, so I have not had time to go through it. I certainly would have hoped to have had it before the case, and I would have sought appropriate advice so I would have known what response I would have given for the degree of money. So in those circumstances I would ask for detailed assessment because I do not know whether it is an appropriate sum or not, so I do not know which way to argue on that. I do have a point about leave to make as well.
39. MR JUSTICE SULLIVAN: Subject to detailed assessment, you do not argue that there is any reason why you should not pay?
40. CLAIMANT: No.
41. MR JUSTICE SULLIVAN: Right. I have to say, Mr Sales, if it is right that Mr Maile did get this just now -- and I think if he wants to ask for a detailed assessment in those circumstances, I think actually fairness compels me to give it to him.
42. MR SALES: I do not disagree with that. I have made my point. It will be worse for him, but he is entitled to decide that he wants detailed assessment.
43. CLAIMANT: I think the point I was making was that I may or may not -- do you understand what I mean -- I want to go away and ask someone else -- whether that would be a course I would take --
44. MR JUSTICE SULLIVAN: If you ask for detailed assessment you have to take the risk that it might end up not better for you.
45. MR SALES: He is entitled to do that, my Lord.
46. MR JUSTICE SULLIVAN: Right, then let us deal with these things in turn. First of all, the application is dismissed. The claimant is to pay the defendant's costs. Those costs are to go for detailed assessment unless otherwise agreed.
47. Now, you have an application for permission to appeal?
48. CLAIMANT: Yes. First of all, I would ask for leave on the basis that, as this is the first time this issue has come before the court and it is of some considerable importance, that it is a matter that should rightly be put to the Court of Appeal for those reasons. The second point, though again it is something I really have a bit of a concern about and I do want to seek further advice on, but the fact of whether or not, because of your previous membership of the RTPI, whether you were an appropriate person to have heard this case considering that a substantial beneficiary of the grants are there, and whether, in view of that, it could be said to be -- in the eyes of the public whether or not you were an independent person to view that. So I would ask for leave on those two grounds.
49. MR JUSTICE SULLIVAN: Thank you very much. I refuse permission to appeal. Whilst I am prepared to accept that this is, as far as I know, the first case on 304A, it seems to me that the argument that the cupboard is bare is a complete answer to the claimant's case, and once one looks at the background facts it cannot possibly be said that there is any unfairness or unlawfulness in the fact that the cupboard is indeed bare. Secondly, as to my previous legal membership of the RTPI, I mentioned it at the outset of the case simply for the record. I did not invite submissions as to whether or not I ought to recuse myself, not least because I gave up my legal membership some eight years ago when I was appointed to the Bench, and as I told Mr Maile, I personally did not have anything to do with the Planning Aid service, which did exist at that time although of course it was not publicly funded at that time. So, for those reasons, I do not think that there is any arguable basis for saying that there was apparent bias. I refuse permission. Thank you.