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 WC2A 2LL
		3rd July 2008

1. SIR MICHAEL HARRISON: Introduction: This is an application by the claimant, Blow Up Media UK Ltd, for judicial review to quash a decision of the defendant, Lambeth London Borough Council, to serve notices on the claimant under section 11 of the London Local Authorities Act 1995, ("the 1995 Act"), and under section 225 of the Town and Country Planning Act 1990 ("the 1990 Act") as amended by section 10 of the 1995 Act, requiring the claimant to remove an advertisement hoarding erected on scaffolding on the front of premises of 441 to 447 Brixton Road, Lambeth.

Factual Background

2. The factual background is that, on 2nd March 2006, the claimant applied to the defendant under the Town and Country Planning (Control of Advertisement) Regulations 1994 for express consent to erect an advertisement approximately 20 metres by 10 metres on a scaffold safety screen located on a scaffold to be erected in order to facilitate building works on part of the existing building at 441 to 447 Brixton Road.
3. The drawings accompanying the application showed that the advertisement was to be attached to a scaffold flush to the front elevation of the upper stories of the building which were themselves set back some 15 metres or so from the front elevation of the ground floor of the building. The application stated that the claimant was anxious to mitigate the effect of unsightly scaffold and debris netting whilst cleaning and building works were in progress on the building. Temporary consent was sought for a period of 12 months. The building is centrally located in a prominent position in Brixton shopping centre and it is within a conservation area. It is next to the underground station and a short walk from Lambeth Town Hall.
4. On 8th June 2006 the defendant granted express consent for the advertisement for 12 months subject to a number of conditions which included a condition requiring the advertisement to be erected strictly in accordance with the approved plans.
5. On 1st August 2006 the advertisement was erected by the claimant, but not in the position for which consent had been granted. It was erected on a self-standing structure on the front of the flat roof over the ground floor of the building about 15 metres or so forward from the front elevation of the upper floors of the building and supported by gantry like structures projecting out from some open windows in the front elevation of the upper floors.
6. The reason subsequently given by the claimant for erecting the advertisement in that position was Health and Safety concerns that the advertisement could not be fitted to abut the upper floors of the building because there were concerns that the roof would not be able to bear the weight of the advertisement and the surrounding apparatus, but no such concern nor any intention to erect the advertisement in a different position from that which had been approved had been communicated to the defendant.
7. The erection of the advertisement immediately resulted in complaints from members of the Council, including the Chairman of the Planning Committee, from members of the public, from a residents' association and from the Community Safety Department of the Council. Due to the level of public concern the matter was classified as a "top priority case" which meant that the complaints had to be investigated and enforcement action taken, if possible, within 24 hours.
8. Mr Costigan, a senior planning enforcement officer in the defendant's planning department, was appointed as the case officer. He visited the site on 4th August 2006, took photographs of the offending advertisement, retrieved the planning file containing the express consent, discussed the matter with a number of other officers, including Mr Flynn, his team leader responsible for, amongst other things, planning enforcement, and he prepared a report for Mr Flynn.
9. The report stated that the advertisement was contrary to the approved plans because it was not on the facade of the set back premises but about 15 metres away from that facade adjacent to Brixton Road. The report recommended service of notices under section 11 of the 1995 Act(a "section 11 notice") and under section 225 of the 1990 Act as amended (a "section 225 notice") in order to facilitate removal of the advertisement. The reasons given in the report for issuing the notices were:

"The advertisement display by reason of its size, positioning and design is an unduly dominant feature of the street scene, results in the loss of visual amenity for the surrounding area, creates unnecessary clutter and constitutes a potential danger to the safe operation of the users and operators of the road network and as such is contrary to policy CD 20 (display of advertisements) of the adopted Lambeth Unitary Development Plan and policy 34 of the Deposit Unitary Development Plan."

10. That recommendation was accepted by Mr Flynn, and the section 11 and section 225 notices were duly issued on 4th August 2006 accompanied by a letter from Mr Costigan which stated that he was aware of the advertisement consent but that the advertisement had not been erected in accordance with the approved plans and the conditions attached to the consent.
11. The section 11 notice stated that the defendant was satisfied that a large advertisement shroud on scaffolding to the front of the premises did not have deemed or express consent and it required the claimant to remove it within 21 days, failing which the defendant intended to enter on the land to remove the hoarding and its fitments, to dispose of them and to recover the reasonable expenses of doing so from the claimant.
12. The section 225 notice was in similar terms, but not identical as it was issued under a different statutory provision. It stated that the defendant was satisfied that the advertisement poster on a large advertisement shroud on scaffolding to the front of the premises was being displayed in contravention of regulations made under the 1990 Act and it required the claimant to remove or obliterate the poster with 21 days, failing which the defendant intended to remove or obliterate the poster and to recover the reasonable expenses of doing so from the claimant.
13. Both of those notices were signed by Mr Flynn.
14. There followed correspondence between the claimant's solicitors and the defendant during which the claimant's solicitors asked the defendant to provide them with the defendant's scheme of delegation, minutes of the committee resolution approving the scheme of delegation and the officer's delegated report and/or contemporaneous notes.
15. I have to say that the defendant's attitude in the ensuing correspondence was less than helpful. They initially failed to provide the scheme of delegation, stating that the claimant's solicitors could obtain it on the Council's website. When they did eventually purport to provide it, it was incomplete and contained parts of different schemes. They initially said that there was no delegated report and that they did not understand the request for contemporaneous notes, but they subsequently produced the internal recommendation report not long before the expiry of the 21 day period specified in the notices.
16. The claimant failed to remove the advertisement within the 21 day period specified in the notices and, on 27th August 2006, it was removed by Enforcement Services Limited on behalf of the defendant in the presence of the claimant's solicitor but in the absence of any officer from the defendant. The defendant retained the advertisement and its fitments pending payment of the costs of removal by the claimant in the sum of £4,750.
17. Subsequently, the advertisement was put up in its approved position, notwithstanding the Health and Safety concerns previously expressed by the claimant. It remained there until July 2007, but the building works to the host building were never carried out.

Scope of the Argument

18. Permission to apply for judicial review of the decision to serve the notices in this case was granted in two stages. On 29th December 2006 His Honour Judge Gilbart QC, sitting as a Deputy High Court Judge, granted permission limited to whether the scheme of delegation extended to the issue of the notices. On renewal, Sullivan J granted permission on 31st August 2007 on the further ground of a failure to take account of two material considerations: firstly, proportionality under Article 1 of the First Protocol of the European Convention on Human Rights and, secondly, the fall-back position of the express consent. Sullivan J also granted permission to the defendant to file further evidence which has resulted in a number of witness statements. The claimant also introduced a further ground relating to the removal of the advertisement by Enforcement Services Limited. Although there was a dispute whether that aspect came within the ground permitted by His Honour Judge Gilbart QC, no objection was raised by the defendant to the court considering it.
19. Submissions were also made about two other matters, firstly, the nature of the power under section 11 of the 1995 Act and, secondly, the extent to which, if at all, I should take into account ex post facto evidence.
20. There is also a claim for damages for the allegedly unlawful removal and retention of the advertisement and scaffolding, but it is agreed that consideration of that aspect of the matter should be deferred pending a decision on the substantive issues.

Statutory Provisions

21. It is necessary, first of all, to refer to the relevant statutory provisions relating to the two notices.
22. Section 11 of the 1995 Act provides, so far as relevant, as follows:

"(1) This section applies to a hoarding or other structure used, or designed or adapted for use, for the display of advertisements including a moveable structure, fitments used to support a hoarding or other structure and a structure which itself is an advertisement, other than such a structure for which deemed or express consent has been granted under the Act of 1990 or regulations made thereunder or for which no such consent for such use is required or which was erected before 1st April 1990.

(2) Where there is in their area a hoarding or structure to which this section applies, a participating council may serve notice under this section on any person who appears to them to be responsible for the erection or maintenance thereof or, if after reasonable enquiry they have been unable to ascertain the name and address of such person, may affix a notice under this section to the hoarding or structure or exhibit a notice in the vicinity of the place where the hoarding or structure is fixed and serve a copy on the occupier of the land unless after reasonable enquiry he cannot be identified.

(3) A notice under this section shall require the removal of the hoarding or structure to which it relates within a period, being not less than 21 days after the date of the notice, specified in the notice, and shall state the effect of subsection (4) below.

(4) If a notice under subsection (2) is not complied with before the expiry of the period specified in the notice, the participating council may --

(a) enter on the land;

(b) remove the hoarding or structure and its fitments and dispose of them; and

(c) recover from the person on whom the notice was served the reasonable expenses incurred by them in so doing unless he satisfies them that he was not responsible for the erection, and is not responsible for the maintenance of the hoarding or structure."

23. Section 225 of the 1995 Act, as amended by section 10 of the 1995 Act, provides, so far as relevant, as follows:

"Power to remove or obliterate placards and posters

(1) Subject to subsections (2) and (3), the local planning authority may remove or obliterate any placard or poster --

(a) which is displayed in their area; and

(b) which in their opinion, is so displayed in contravention of regulations made under section 220.

...

(3) The council of a London borough may give notice in writing to a person who displays or causes to be displayed a placard or poster in respect of which they may exercise the powers conferred by subsection (1) --

(a) that in their opinion it is displayed in contravention of regulations made under section 220;

(b) requiring him to remove or obliterate it before the expiry of a period being not less than two days from the service of the notice, specified in the notice; and

(c) that if he does not do so, they intend to remove or obliterate it after the expiry of the period and recover from him the expenses reasonably incurred by them in so doing.

(4) Where a notice has been duly served under subsection (3) and the poster or placard to which it relates has not been removed or obliterated before the expiry of the period specified in the notice, the council of the London borough may remove or obliterate it and may recover from the person on whom the notice was served the expenses reasonably incurred by them in so doing; but in any proceedings for the recovery of such expenses it shall be for the council to show that the poster or placard was displayed in contravention of regulations made under section 220."

24. It can be seen, therefore, that section 11 of the 1995 Act relates to a hoarding or other structure and empowers its removal, while section 225 of the 1990 Act relates to a placard or poster and empowers its removal or its obliteration. I am told that it is not uncommon for local authorities in London to issue both notices, the section 225 notice, in effect, being belt and braces. Most of the arguments in this case relating to the nature and purpose of the power centred on the section 11 notice.

Nature and purpose of the power

25. a) submissions: I turn, therefore, to the submissions that were made about the nature and purpose of the power under section 11 of the 1995 Act.
26. Firstly, the nature of the power. Mr Jones, who appeared on behalf of the claimant, described it as a draconian power, adopting that description given to it by Collins J in R v (on the application of Maiden Outdoor Advertising Limited) v Lambeth Borough Council [2003] EWHC 1224. Reliance was placed on the lack of any right of appeal against the notice, the lack of any right to compensation, the entry onto private property and the liability to pay the charges for the advertisement's removal. Mr Jones submitted that such an enforcement measure should be exercised with care and that the procedures should be transparent and should be documented contemporaneously, all the more so in the case of the exercise of delegated authority.
27. Mr Edwards, who appeared on behalf of the defendant, submitted that, however the power may be described, it was not without precedent. Section 225 of the 1990 Act does not carry any right of appeal or any right to compensation. Breach of condition notices under section 187A of the 1990 Act similarly do not involve any right of appeal or right to compensation. Stop notices under section 183 and temporary stop notices under section 171E of the 1990 Act do not carry any right of appeal, although stop notices are invariably accompanied by an enforcement notice which does carry a right of appeal, and there is only a limited right to compensation where the prohibited activity is shown to be lawful or where the notice is withdrawn.
28. Secondly, the purpose of the power. Mr Jones submitted firstly that the power was not unfettered and secondly that it should only be used in flagrant cases where the perpetrator could not be identified. In support of his first submission, Mr Jones relied on the approval given by Lord Bridge in R v Tower Hamlets London Borough Council ex parte Chetnik [1988] AC 858, to the passage in Wade on Administrative Law 5th edition where it was stated that a statutory power conferred for public purposes is conferred as if it were on trust and that it can only be used in the way in which Parliament when conferring it is presumed to have intended.
29. Mr Jones also relied on two injunctions cases. Firstly, City of London Council v Bovis Construction Limited [1989] JPL 263, a case involving an injunction under section 222 of the Local Government Act 1972 where Bingham LJ, as he then was, stated that the jurisdiction was to be invoked and exercised exceptionally and with great caution. Secondly, South Bucks District Council v Porter [2003] 2 AC 558, a case involving an injunction under section 187B of the 1990 Act where Lord Scott approved the dictum of Lord Wilberforce in the Gouriet case where he said that the jurisdiction to grant an injunction in aid of the public law is one of great delicacy and to be used with caution.
30. In support of his second submission that section 11 of the 1995 Act was only intended to be used where the perpetrator could not be identified, Mr Jones relied on the transcript of brief evidence given in support of the Bill to the Unopposed Bill Committee in the House of Lords during its passage through Parliament, a document which had in fact been produced by Mr Edwards on behalf of the claimant. Reliance was placed by Mr Jones on one sentence when the witness said that those who are responsible for putting up hoardings have been consistently able to avoid prosecution in the courts because local planning authorities have been unable to identify the person responsible. The point was made that in this case the identity of the person putting up the advertisement was well known and that the claimant had received express consent for it, albeit in a different position.
31. Mr Edwards accepted that, although the discretion in section 11 is on its express wording unfettered, it must be exercised for a legitimate planning purpose which in this case related to visual impact and highway safety. He suggested that the Bovis case was historical because at that time section 187B of the 1990 Act had not been enacted so that reliance had to be placed on section 222 of the Local Government Act 1972. He submitted that section 11 provided a rapid response mechanism to unlawful advertisements in London which can often cause serious harm to visual amenity and/or public safety. He contended that the transcript of the proceedings in the House of Lords showed that the objective of section 11 was to secure removal of advertisements without recourse to the Magistrates' Court which had no power to order removal and which involved a process which takes time. He submitted that there was nothing in section 11 to indicate that the power was only to be exercised exceptionally when the culprit was not known or as a last resort. If it had been Parliament's intention to make the power contingent on failure to identify the offender, it would have said so.
32. Mr Edwards cited examples of section 58(8) of the Control of Pollution Act 1974 and section 81(5) of the Environmental Protection Act 1990 as examples of where, if Parliament intends there to be a condition precedent to the exercise of a power, it says so. Finally, he pointed out that section 11(2) of the 1995 Act empowered the council to serve the notice on the person who appeared to be responsible for the erection of the advertisement, a provision that would be unnecessary if Mr Jones were right that the power was only exercisable when the identity of the perpetrator was unknown.
33. b) conclusions: The purpose of all the above mentioned submissions was, in effect, to provide the context for consideration of the main grounds of challenge. I can, therefore, state my overall conclusions on the matters raised quite shortly.
34. I would not dissent from the description of the section 11 power as a draconian power, in that it provides no right of appeal or right to compensation, although that is not entirely without precedent. Although I do not gain much assistance from the injunction cases that were quoted as they depend on their own statutory provisions and context, I would accept that the section 11 power, whether it is called draconian or not, is a power that should be exercised with care. I would not, however, accept that it should only be exercised when the identity of the offender is unknown.
35. I am extremely doubtful whether it is right for me to have regard to a short transcript in unopposed Private Bill proceedings when considering the intention of Parliament but, as the transcript has been provided, it seems tolerably clear to me that the objective of section 11 is to enable local authorities in London to secure removal of unauthorised advertisements without the necessity of recourse to the Magistrates' Court. Whilst that power would no doubt be helpful in cases where the perpetrator is unknown, the power is in no way intended to be restricted to that situation.
36. I now turn to deal with the main grounds of challenge. I deal first with the grounds of challenge relating to the claimant's Scheme of Delegation.

Grounds of challenged relating to the Scheme of Delegation

37. a) factual background: The defendant's scheme of delegation, which was approved on 24th May 2006, is a lengthy document only parts of which are relevant to this case. It consists of three parts -- the Introduction, the Corporate Scheme of Delegation, which applies to the Chief Executive and all Executive Directors, and the Departmental Scheme of Delegation, which involves additional powers delegated individually to the Chief Executive and each Executive Director.
38. The grounds of challenge relating to the Scheme of Delegation fall into two parts -- firstly, the delegation of the relevant power from the Executive Director of Corporate Services to the Assistant Director of Planning, Mr Brown, and, secondly, the further delegation of the power from Mr Brown to Mr Flynn who authorised the service of the section 11 notice in this case.
39. The first part of the challenge to the Scheme of Delegation involves consideration of Part (b) of the Departmental Scheme of Delegation which relates to the Executive Director of Corporate Services ("EDCS").
40. Paragraph 1 of that part of the Scheme sets out various powers which are delegated to the EDCS. Paragraph 1 states as follows:

"Subject to the exclusions referred to in paragraph 5 of the Corporate Scheme of Delegation, the Executive Director of Corporate Services is authorised to act on behalf of the Council on all matters relating to the discharge of the Corporate functions of the Council, which include but are not limited to the Council's regeneration, town planning, and development control functions; Legal and Democratic Services, the Youth Council, purchasing and supplies, payroll, pensions, valuation services, management of corporate property, central support services, rent officers, information technology and telecommunications. (NB certain Corporate functions are discharged by the Assistant Chief Executive)."

Paragraph 1 therefore delegates to the EDCS general powers relating to town planning and development control functions, subject to the exclusions referred to in paragraph 5 of the Corporate Scheme of Delegation.

41. Paragraph 5 of the Corporate Scheme of Delegation sets out seven categories of matters which are excluded from the Scheme of Delegation, including matters which the Council or the Cabinet have resolved shall be determined by itself and matters which have been delegated to a committee of the Council or of the Cabinet to determine. I was given a list of eight categories of planning matters, which, pursuant to a resolution of the Full Council dated 19th May 2004, come within paragraph 5 of the Corporate Scheme of Delegation and which are, therefore, excluded from paragraph 1 of the Departmental Scheme of Delegation relating to the EDCS.
42. Paragraph 4 of the Departmental Scheme of Delegation relating to the EDCS states as follows:

"The authority to determine Town Planning Applications and related matters (including enforcement decisions) as set out in the Scheme of Delegation is delegated to the Assistant Director for Planning."

That is the paragraph relied on by the defendant for the delegation of the power to issue section 11 and section 225 notices from the EDCS to Mr Brown, the Assistant Director of Planning.

43. Mr Jones challenges the vires of that delegation on two grounds: firstly, that paragraph 4 does not include section 11 notices, and, secondly, that the Town Planning Applications and related matters are not set out in the Scheme of Delegation.
44. b) delegation to Mr Brown: Under the first ground of challenge, Mr Jones contrasted the wide planning powers delegated to the EDCS and the more restricted planning powers sub-delegated to the Assistant Director of Planning. He submitted that town planning applications can only be made under the 1990 Act and that the words "related matters" referred to in paragraph 4 are therefore confined to related matters arising under the 1990 Act, including enforcement decisions made under the 1990 Act. He therefore submitted that paragraph 4 of this part of the Scheme of Delegation does not extend to the section 11 power which is not a town planning application or related matter under the 1990 Act, and that, if it had been intended to delegate development control functions to the Assistant Director of Planning, paragraph 4 would have said so. The capital letters used for "Town Planning Applications" were said to enforce the point.
45. Mr Edwards, on the other hand, pointed out that paragraph 4 could have included the words "under the Town and Country Planning Act 1990" if that was what had been intended. He submitted that the words "town planning" were adjectival and that paragraph 4 was intended to refer to town planning applications and town planning related matters, including enforcement decisions.
46. He pointed out that, if Mr Jones were right, the Assistant Director for Planning could issue section 225 notices because they derive from the 1990 Act, but that he could not issue section 11 notices, which would be illogical. He submitted that section 11 is a town planning enforcement power intended to supplement the 1990 Act in relation to enforcement against unauthorised advertisements.
47. He also relied on paragraph 20 of the Notes contained in the Introduction section of the Scheme of Delegation which states:

"Functions, matters, powers, authorisations, delegations, duties and responsibilities within this Scheme shall be construed in a broad and inclusive fashion and shall include the doing of anything which is calculated to facilitate or is conducive or incidental to the discharge of anything specified."

48. Finally Mr Edwards drew attention to paragraph 5 immediately following paragraph 4 in the part of the Scheme of Delegation relating to the EDCS which states:

"The authority to determine Town Planning Applications for consent under the Rush Common Act 1806 is delegated to the Divisional Director for Community Renewal (Planning) ..."

49. Mr Edwards' point was that the words "Town Planning Applications" in paragraphs 4 and 5 must have the same meaning and that, if they mean "under the Town and Country Planning Act 1990", paragraph 5 does not make sense. Mr Jones, however, suggested that there are both town planning applications under the 1990 Act and also applications for consent under the Rush Common Act.
50. I acknowledge the force of the claimant's argument. Paragraph 4 is not drafted as clearly as it should be. The fact is that paragraph 4 does not include the words "under the Town and Country Planning Act 1990". Section 11 of the 1995 Act supplements the general planning enforcement powers under the 1990 Act by providing an expedited procedure for the removal of unauthorised advertisements in London in a similar but not identical way to that under section 225 of the 1990 Act. In my view, it would be appropriate to regard it as a town planning enforcement power. It would be strange if the section 225 power could be delegated to the Assistant Director of Planning, but the section 11 power could not.
51. In my judgment, this is a case where it would be appropriate to construe paragraph 4 in a broad and inclusive fashion in accordance with paragraph 20 of the Notes in the Introduction to the Scheme of Delegation so that paragraph 4 is construed as including town planning enforcement decisions which are not restricted to those arising under the 1990 Act, but which would include the exercise of the power under section 11 of the 1995 Act.
52. The second ground of challenge relating to the delegation from the EDCS to the Assistant Director of Planning also arises under paragraph 4. The claimant's case is that the words "as set out in the Scheme of Delegation" refer back to the "Town Planning Applications and related matters" which should therefore be set out in the Scheme of Delegation but which are not set out in the Scheme of Delegation. That is said to be an enormous hole in the scheme which is fatal to the defendant's case. Nowhere are the town planning applications and related matters referred to in paragraph 4 set out in the scheme of delegation. The claimant's case is that paragraph 4 does not relate to all town planning applications and related matters, only those set out in the Scheme of Delegation.
53. The defendant's case is that the words "as set out in the Scheme of Delegation" refer back to the authority to determine the matters mentioned in that paragraph. That authority is derived from paragraph 1, which itself is subject to paragraph 5 of the Corporate Scheme of Development under which the defendant has resolved to exclude a number of planning matters. The words "as set out in the Scheme of Delegation" are said to make it clear that it is subject to paragraph 5 of the Corporate Scheme of Delegation which is referred to in paragraph 1. I was told that the same wording as is now contained in paragraph 4 has appeared for many years in successive versions of the constitution and Scheme of Delegation with a very large number of decisions taken under delegated authority pursuant to paragraph 4, all of which would be unlawful if the claimant's interpretation were correct.
54. The claimant's response is that either there is vires or there is not. If there is not, then those decisions were unlawful. The claimant also points out that if the defendant's interpretation is correct, the words "as set out in the Scheme of Delegation" should appear in the other paragraphs in this part of the Scheme of Delegation relating to the EDCS, but they do not.
55. Mr Edwards sought to counter that point by suggesting that all the other paragraphs of this section of the scheme, except paragraphs 3 and 4, were dealing with powers complementary to those of the EDCS, whilst paragraphs 3 and 4 were sub-delegating part of the wide powers of the EDCS.
56. Mr Jones said that, on a proper analysis of the other paragraphs, that simply was not so. He made the point that there was no reference to paragraph 1 in paragraph 4 and that there is no special reason why paragraph 4 should be flagged up to be made subject to paragraph 5 of the Corporate Scheme of Development under which other matters beside town planning would be excluded.
57. Mr Edwards submitted that I had to choose between an interpretation of paragraph 4 which makes a nonsense of the Scheme and involves a basic omission, and an interpretation that makes sense and accords with the way in which the defendant's officers have understood it and interpreted it for many years.
58. That is a stark but realistic way of putting it. Nevertheless, if I am driven to conclude that the claimant's interpretation is correct, the consequences must follow. My conclusion, however, is that, on a proper interpretation of paragraph 4, the words "as set out in the Scheme of Delegation" are intended to refer to the authority to determine town planning applications and related matters rather than to a list of town planning applications and related matters which is missing from the scheme.
59. If paragraph 4 had not been intended to refer to all town planning applications and related matters but only those set out elsewhere in the Scheme of Delegation, they would have been set out elsewhere in the Scheme of Delegation. In my view, the mere omission of such a list is in itself an indication that that was not the the intention of paragraph 4. Furthermore, if that had been intention of paragraph 4, I would have expected paragraph 4 to have specified where in the Scheme of Delegation the list of town planning applications and related matters to which it refers were set out, but it does not do so.
60. I am not impressed by Mr Edward's argument to try and explain why the words "as set out in the Scheme of Delegation" do not appear in the other paragraphs of this part of the Scheme by attempting to classify those paragraphs into two separate categories, but the fact of the matter is that those words do appear in paragraph 4 and can be taken to embrace paragraph 1 of this part of the Scheme. The fact that other paragraphs do not contain those words is a fair point to make but, in my view, it is not determinative.
61. I have, therefore, decided that the defendant's interpretation is to be preferred and makes better sense.
62. c) delegation from Mr Brown to Mr Flynn: I turn now to the second part of the grounds of challenge relating to the Scheme of Delegation, namely the sub-delegation from Mr Brown, the Assistant Director of Planning, to Mr Flynn, the team leader responsible for planning enforcement who authorised the service of the section 11 notice in this case.
63. The basic facts relating to this aspect of the matter are as follows. Paragraph 4 of the Notes in the Introduction section of the Scheme of Delegation states:

"An officer to whom a power, duty or function is delegated may nominate or authorise another officer to exercise that power, duty or function, provided that officer reports to or is responsible to the delegator."

64. Paragraph 7 of the Corporate Scheme of Delegation provides:

"Any power transferred under this scheme of delegation may not be further delegated without the express approval of the Chief Executive, or the Executive Director."

65. Section 5 of the Introduction section of the Scheme of Delegation sets out some safeguards for the authorisation of subordinate officers to discharge functions in a Scheme of Delegation.
66. Finally, by a document signed on 1st February 2006 by Mr Brown, who was then Assistant Director for Community Renewal (Planning), but whose title subsequently changed to Assistant Director for Planning, Mr Brown purported to delegate his powers to, inter alia, Mr Flynn in the following terms:

"1. Pursuant to section 101 of the Local Government Act 1972, I, Les Brown, as the Assistant Director for Community Renewal (Planning) am empowered to deal with the matters set out paragraphs 5 and 6 (as detailed on page 23 of part 3 section 4 (delegated powers)) of the Council's constitution agreed at the Annual Meeting of the Council held on 18th May 2005.

...

3. Pursuant to the said scheme of delegation and the express approval of the Executive Director of Corporate Services I hereby delegate to you, Faye Tomlinson, Sheree Bennett, Lucy Kelly, Fiona Winder, Andy Hollins, John Flynn and Richard Saunders authority to make all the said decisions which are otherwise reserved to me as the Assistant Director for Community Renewal (Planning)."

67. The claimant raises three points relating to this aspect of the challenge -- firstly that there is no power for an officer to sub-delegate to another officer, secondly that it is unlawful to sub-delegate all decisions reserved to the delegator and, thirdly, that the sub-delegation was made under a Scheme of Delegation that was defunct.
68. So far as the first point is concerned, Mr Jones relied on the maxim "delegatus non potest delegare". Whilst section 101 of the Local Government Act 1972 overcame that hinderance by permitting delegation to an officer, it was submitted that it did not relax the rule in the case of an officer exercising delegated powers.
69. When granting permission in this case, His Honour Judge Gilbart QC said that he did not accept that an officer to whom a delegation has occurred cannot act through another officer, citing Cheshire County Council v Secretary of State for the Environment [1988] JPL 30. That was a decision of Schiemann J, as he then was, where he relied on the House of Lords' decision in the case of Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173 which concerned the issue of sub-delegation from a council's treasurer to another officer. Lord Roskill stated at page 179:

"Equally clearly, the performance of such duties as in consequence fall upon the respondents' treasurer could not possibly all be performed by him personally, and Parliament cannot possibly have intended that this should be so. The respondent's treasurer required staff to carry out the financial affairs which he is enjoined to administer."

70. In the Cheshire County Council case, the issuing of enforcement notices had been delegated under standing orders to the County Secretary and Solicitor, but Schiemann J was satisfied that arrangements had been made for that function to be performed by a senior assistant solicitor. He remarked that the multitude of tasks entrusted by the standing orders to the County Secretary and Solicitor were such that it was inconceivable that the Council intended that all those functions should be attended to by one man, or that he should make the relevant value judgments himself in respect of each of them.
71. Mr Jones drew my attention to a judgment of Ouseley J in R (on the application of Terrafirma Properties Limited) v Manchester City Council (transcript, 14th February 2002) where reference was made to Schiemann J's judgment potentially conflicting with the judgment of Hooper J, as he then was, in R v St Edmundsbury Borough Council, ex parte Walton [1999] JPL 805. Ouseley J was, however, there dealing only with a permission application.
72. I am satisfied, following the reasoning in the cases that I have referred to, that it would have been wholly impracticable for Mr Brown to have dealt himself with all his functions as Assistant Director of Planning. In my view, those cases show that it is reasonable and lawful to permit sub-delegation to other officers.
73. The second point raised by Mr Jones was that it was unlawful for Mr Brown to sub-delegate all his decision-making powers to other officers because, by signing off those powers carte blanche to the other officers, they would be making the decisions themselves and not on his behalf.
74. I do not accept that point. It is not as if Mr Brown was thereby relinquishing his decision making powers. He was simply enabling the seven named officers to take decisions that he would otherwise have to take. They would be making those decisions on his behalf and not in any unauthorised or unlawful way.
75. The third point raised by Mr Jones was that the sub-delegation to Mr Flynn was made under the Scheme of Delegation approved on 18th May 2005 which was defunct at the time the decision was made in this case on 4th August 2006 because a new Scheme of Delegation was approved on 24th May 2006. He contended that it was unlawful to carry over a sub-delegation from a previous Scheme which was no longer in force, and he stressed the need for transparency.
76. Mr Edwards explained that the powers delegated by Mr Brown were identical under both Schemes. In other words, paragraphs 5 and 6 referred to in paragraph 1 of his delegation under the May 2005 Scheme were identical to paragraphs 4 and 5 of the part of the 2006 Scheme relating to the EDCS. The only difference was Mr Brown's change of title although his job remained the same.
77. I was referred to the second witness statement of Mr Flockhart, who has been a Senior Planning Lawyer employed by the defendant since June 2003. He stated that it was the defendant's constitution, approved on 24th May 2006, which was operative on 4th August 2006, when the relevant decision was made (I have throughout referred to the Scheme of Delegation, but I presume that the Scheme of Delegation forms part of the constitution.) However, he explained that it was not normal practice for the defendant to reissue documents such as that containing Mr Brown's sub-delegation of powers unless any of the named officers leave their post or unless there is a material alteration in the substance of the delegated power. There are a considerable number of documents equivalent to Mr Brown's sub-delegation document and they would not normally be reissued because of an amendment and reissue of the constitution when the substance of the power delegated to the delegator has not altered. Mr Flockhart stated that Mr Brown's sub-delegation document remained operative at the date of the decision in this case.
78. Mr Edwards submitted that Mr Brown's sub-delegation document had a continuing effect because the powers did not change. He pointed out that paragraph 4 of the Notes of the Scheme of Delegation contained the power of an officer to nominate another officer to exercise his power and he submitted that Mr Brown's nomination of Mr Flynn remained in force. He invited me to look at the substance and not form and submitted that, if the substance of the power had not changed, there was no reason to change the document simply for change's sake.
79. Superficially Mr Jones' point is an attractive one and I have not found it easy to decide. It seems to me that the custom and practice of the defendant, as described by Mr Flockhart, can give rise to an unsatisfactory situation whereby there are a number of documents containing current delegation powers which are not enshrined in the current Scheme of Delegation. I have, however, come to the view that I should look at the substance rather than the form of the matter. The substance of the matter is that, under the custom and practice of the defendant, the delegation of powers made under a previous scheme are carried over without the requirement of express incorporation in the new Scheme in circumstances where there is no change in the name of the relevant officer and no material change in the delegated power. That custom and practice leads to the result in this case that the sub-delegation of powers by Mr Brown remained operative as there was no need to incorporate it into the new scheme. To talk of the 2005 scheme as defunct is correct only insofar as the 2006 scheme is now the operative scheme, but there remained documents produced as part of the 2005 scheme which remained in force as valid sub-delegations without the need for express incorporation into the 2006 scheme.
80. For those reasons this ground of challenge fails, but it has highlighted what I consider to be an unsatisfactory situation whereby there exist documents relating to the delegation of powers which are not incorporated into the current Scheme of Delegation. Whilst I understand the reasons of administrative convenience giving rise to that situation, it is, in my view, unsatisfactory and should be reviewed by the defendant.

Enforcement Services Limited

81. The next ground of challenge relates to the removal of the advertisement by Enforcement Services Limited ("ESL"). As I mentioned earlier, there is no objection to this ground being raised although it was not raised in the claim form.
82. The factual situation relating to this ground is that the defendant engaged the services of ESL to remove the advertisement and the scaffolding. They carried out that task in the absence of any officer from the defendant although the claimant's solicitor was present.
83. Mr Jones' complaint on this aspect of the matter was that an officer from the defendant should have been present to supervise the removal of the advertisement. It was submitted that, in the absence of an officer, what happened was not the discharge of a function by the defendant, it was the discharge of a function by ESL who should only have been assisting or facilitating the discharge of the defendant's function.
84. Mr Edwards submitted that the power of the defendant under section 11(4) of the 1995 Act to enter on the land to remove the advertisement must be construed as enabling the defendant to enter the land through its servants or agents as the case may be. As he pointed out, works under the 1995 Act can often require specialist contractors who are frequently engaged by the defendant when it does not possess the necessary expertise. He submitted that the need for the presence of an officer from the defendant whilst the work is carried out by a contractor is one of reasonableness. He accepted that there could be a situation where a problem is anticipated, such as the eviction of gypsies, where it may be appropriate or necessary for an officer to be present, but that did not apply to the present case.
85. I accept Mr Edwards' submission on this point. In my view, it was open to the defendant to employ a private contractor to remove the advertisement. The fact that an officer was not present does not cause the removal of the advertisement by ESL to be a discharge of the function by them rather than by the defendant. They were acting on behalf of the defendant in assisting or facilitating the discharge of the function by the defendant. There was no need for an officer to be present. There is no evidence of any need for supervision. In those circumstances, the absence of an officer was not unreasonable and it did not cause the removal of the advertisement to be unlawful.

Failure to take material consideration into account

86. a) introduction: I now turn to the other part of the claimant's case, namely the failure to take account of material considerations. As I mentioned earlier, there are two aspects of this part of the case:- the failure to take account of the fall-back position of the express consent and the failure to take into account proportionality under Article 1 of the First Protocol of the European Convention on Human Rights.
87. Before I consider those two aspects I should mention that, pursuant to the permission given by Sullivan J, a number of witness statements were filed by the defendant dealing with those aspects. Mr Jones submitted that I should be most reluctant to take the ex post facto evidence into account. Indeed, he went so far as to suggest that it would be wrong for me to take it into account. He said that a lot of time has passed since the events of early August 2006, a lot had happened in the short time between the erection of the advertisement and the issue of the notices and there was a danger of the witness statements seeking to uphold the defendant's case in these proceedings. He submitted that the matter should stand or fall on the report prepared by Mr Costigan which had been endorsed by Mr Flynn.
88. I was referred to the case of Nash v Chelsea College of Art and Design [2001] EWHC 538 Admin where Stanley Burnton J, as he then was, summarised the propositions relating to accepting late reasons as derived from the authorities. He said at paragraph 34(ii):

"... the court will be cautious about accepting late reasons. The relevant considerations include the following, which to a significant degree overlap:

(a) Whether the new reasons are consistent with the original reasons.

(b) Whether it is clear that the new reasons are indeed the original reasons of the whole committee.

(c) Whether there is a real risk that the later reasons have been composed subsequently in order to support the tribunal's decision, or are a retrospective justification of the original decision. This consideration is really an aspect of (b).

(d) The delay before the later reasons were put forward.

(e) The circumstances in which the later reasons were put forward. In particular, reasons put forward after the commencement of proceedings must be treated especially carefully. Conversely, reasons put forward during correspondence in which the parties are seeking to elucidate the decision should be approached more tolerantly."

89. Subsequently, in B v Merton London Borough Council [2003] EWHC 1689 Stanley Burnton J made clear that reasons that merely elucidate reasons given contemporaneously with a decision will normally be considered by the court.
90. b) the fall-back position: The claimant's case is that the defendant failed to take into account what was referred to as the fall-back position, that is to say a comparison between the advertisement in the position that had express consent and the advertisement in the position against which enforcement action was taken. It was accepted that Mr Costigan's report referred to the express consent but it was said that the reference was not in the context of planning considerations or whether enforcement was expedient. Reliance was placed on the reference, in the section of the report dealing with the reasons for issuing the notice, to the advertisement being unduly dominant in the street scene by reason of its size, position and design. The inclusion of the reference to size and design was said to reinforce the point that the defendant had failed to have regard to the fact that the consented advertisement was of the same size and design as that to which the notices related. It was therefore submitted that the report had failed to address the fall-back position which was a material consideration, and that I should not have regard to the defendant's witnesses' statements which suggested to the contrary.
91. Mr Edwards submitted that the report was part of the whole enforcement process, including its preparation and presentation, and that it was permissible to have regard to the witness statements relating to that process. The authorities referred to by the claimant were cases dealing with reasons, not cases dealing with a failure to take material considerations into account. I was reminded that permission had been refused in this case on the ground of inadequate reasons. In any event, it was said that the witness statements merely elucidated the whole process and what had been taken into account.
92. I was referred to the witness statements of Mr Costigan, the case officer, who explained that the matter had been designated as a top priority case. He had visited the site on 4th August 2007 and taken photographs. He was familiar with the site and its central location. He had obtained the planning file relating to the express consent, which also contained the drawings. It was plain to him that the advertisement was in a materially different and much more prominent position than the consented advertisement. He spoke to Ms Butera, the case officer who had dealt with the application for express consent, and to her team leader. Both of them expressed the view that they would be unlikely to grant retrospective consent for what had been erected. Mr Costigan formed the view that, although the size and design of the advertisement was the same as the consented advertisement, its position, together with the long metal gantry-like supports projecting from inside the set back building to the advertisement, which were highly visible along Brixton Road, resulted in a much greater degree of prominence and visual harm than the consented advertisement. Mr Costigan spoke to Mr Heslop of the defendant's highways department who expressed the view that the advertisement in its present position was potentially dangerous to pedestrians and drivers.
93. Mr Costigan stated in his witness statement that he formed the view that the matter required urgent action. He was aware of the enforcement options available to deal with unlawful advertisements, including prosecution or the service of an enforcement notice, but both would have involved considerable delay, and he formed the view that the actual and potential harm caused by the advertisement was such that the service of section 11 and section 225 notices was appropriate.
94. Before preparing and submitting his report, he had two discussions with Mr Flynn, the enforcement team leader, whose desk was a short distance from his desk, and who told him that he had been the officer who, under delegated authority, had approved the grant of the express consent. In the light of those discussions, he considered that he did not need to go into more detail than he did in the report which he submitted to Mr Flynn.
95. Mr Flynn, in his witness statement, confirmed the matters to which Mr Costigan had referred. He stated that he was aware of the enforcement powers available to the Council and that, relying on section 11, is no trivial matter as it involves direct action against private property. However, he formed the view that the advertisement was causing serious visual harm in a high profile location in a conservation area and that, together with the potential highway safety concerns, a speedy response was necessary which neither prosecution nor planning enforcement would provide. That led him to the view that the service of the statutory notices was appropriate. He went so far as to say that, if Mr Costigan had recommended only prosecution or planning enforcement, he would not have supported the recommendation.
96. On that evidence, Mr Edwards submitted that it was abundantly clear that, when the process as a whole was considered, both Mr Costigan and Mr Flynn not only knew of the express consent but that they also considered whether the unlawful advertisement was materially different from the consented advertisement, and they had formed the view that it was materially more prominent and harmful and more dangerous in highway terms than the consented advertisement.
97. I accept that it is necessary to approach ex post facto evidence with caution and I have had regard to the considerations mentioned by Burnton Stanley J in Nash v Chelsea College of Art and Design. Although he was summarising propositions arising from cases dealing with late reasons, some of the considerations he mentioned are also pertinent to the present case. I bear in mind the delay of a year between the issue of the notices and the date of the witness statements. I also bear in mind the risk of the witnesses being influenced by a desire for the notices to be upheld. There is, however, no suggestion of bad faith or improper motivation and I have been impressed by the clear recollections of what happened in a relatively short period of time. It is clear from the immediate reaction to the erection of the advertisement that it gave rise to considerable concern. The fact that it was in such a central and prominent location and also a short walk from Lambeth Town Hall were, no doubt, contributory to the immediate reaction.
98. I have no difficulty in concluding that it is appropriate for me, in the circumstances, to have regard to the witness statements which I have summarised, whilst at the same time, bearing in mind the reasons for approaching them with caution. Having done so, it is abundantly clear to me that the express consent was taken into consideration, that the officers took into account the degree of difference between the effect of the consented advertisement and the effect of the unlawful advertisement, and that they concluded that the latter was materially more harmful than the former. I have seen photographs of the unlawful advertisement, together with the gantry-like supports projecting from the set back building, and I can well understand how the officers came to that conclusion. It follows that I do not accept this ground of challenge.
99. c) proportionality: The last ground of challenge relates to proportionality under Article 1 of the First Protocol of the European Convention on Human Rights which provides as follows:

"Protection of property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law ...

The preceding provisions shall not however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest ..."

100. The claimant's case on this aspect can be shortly stated. It is contended that the claimant's rights under Article 1 of the First Protocol were engaged and that it is clear from the officer's report that there was no consideration at the time of the issue of the notices whether the action to be taken was proportionate. There was no evidence in the report that the officers considered whether other less draconian measures would suffice. This was another area where the claimant submitted that I should not accept ex post facto evidence, relying on the same line of authorities to which I have referred. Reference was also made to R (on the application of Carlton-Conway) v London Borough of Harrow [2002] JPL 1216 where Pill LJ stressed the importance of planning officers making a contemporaneous record when exercising delegated powers.

100. Mr Edwards relied on the parts of the witness statement of Mr Costigan and Mr Flynn to which I have already referred where they stated their awareness of the other enforcement measures that were available and their reasons for not adopting them, namely the degree of harm being caused by the unlawful advertisement and the delay involved in adopting those measures. He therefore submitted that proportionality had been taken into consideration.
101. He also submitted that, if he were wrong about that, I should not quash the decision but that the court should decide whether the action taken was proportionate. I was referred to two cases in support of that proposition -- R (SB) v Denbigh High School [2007] 1 AC 100 and Belfast City Council v Miss Behavin' Limited [2007] 1 WLR 1420.
102. In the Denbigh High School case Lord Bingham stated at paragraph 29:

"... the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated. In considering the exercise of discretion by a national authority the court may consider whether the applicant had a fair opportunity to put his case, and to challenge an adverse decision, the aspect addressed by the court in the passage from its judgment in Chapman's case 33 EHRR 399 quoted above. But the House has been referred to no case in which the Strasbourg court has found a violation of Convention right on the strength of failure by a national authority to follow the sort of reasoning process laid down by the Court of Appeal. This pragmatic approach is fully reflected in the 1998 Act. The unlawfulness proscribed by section 6(1) is acting in a way which is incompatible with a Convention right, not relying on a defective process of reasoning ..."

103. In the Miss Behavin' Limited case, the House of Lords held that, on judicial review, the relevant question was not whether the local authority had properly considered whether the applicant's rights under the Convention would be violated, but whether there had actually been a violation of those rights. I was referred by Mr Edwards in particular to paragraph 37 of the opinion of Lady Hale. Mr Jones drew my attention to paragraph 15 of Lord Hoffman's opinion where he stated that, where a Convention right has a procedural content, procedural impropriety may be a denial of a Convention right. Mr Jones suggested that Article 1 of the First Protocol does have a procedural element in the words "subject to the conditions provided for by law", so that failure to take into account a relevant consideration may be acting in a disproportionate manner.
104. Both parties were agreed that I had to decide whether the issuing of the notices was a proportionate response to the unlawful erection of the advertisement.
105. Mr Edwards referred to a number of factors which he submitted, were relevant to the issue of proportionality -- the flagrant nature of the breach, the public interest in ensuring that planning controls are complied with and that breaches of planning control are enforced, the highway safety concerns pointing strongly to a speedy resolution, the prominence of the advertisement and its supporting structure in the street scene in a conservation area, and the fact that the claimant could still erect the advertisement in the authorised position.
106. I turn first to the question whether the issue of proportionality was taken into account. Unlike consideration of the evidence relating to the fall-back position of the express consent which was assisted by the description of the practical steps taken in the decision taking process, quite apart from the reference to the express consent in the report and in the letter accompanying the notices, the position relating to the issue of proportionality is rather different. Not only is there no reference to that issue in the officer's report, but the witness statements simply recite the officers' awareness of the shortcomings of alternative enforcement measures and their inappropriateness in this case. Whilst I do not doubt the good faith of the officers, I do consider that there is a real danger of ex post facto reasoning on that aspect. I am not persuaded that it was a matter that was deliberately or conscientiously taken into account.
107. It does, however, fall for me to decide whether the action taken was proportionate. I have had the advantage of seeing photographs of the unauthorised advertisement and its supporting structures. I can understand the immediate concern that arose over the visual harm that it caused in such a prominent location, although I consider that the potential highway safety risk is less compelling. Given the degree of public concern and the resulting priority given to the case, I consider that the delay that would have arisen if the alternative enforcement measures of prosecution or planning enforcement had been adopted would have been unacceptable in the circumstances. There was no chance of a retrospective consent being given for the unauthorised position and the claimant had consent to erect the advertisement in the authorised position, which they subsequently did. Whilst I accept that the section 11 power is a draconian power, I am nevertheless satisfied that the issue of the notices in the circumstances of this case can fairly be said to be a proportionate response to the unauthorised advertisement.
108. In those circumstances, I decline to quash the decision on the basis of a failure to take the issue of proportionality into consideration. Although there was that defect in the decision taking process, it was a defect of procedure that does not affect the substantive issue whether the claimant's right under Article 1 of the First Protocol were violated. For the reasons I have given, the action taken by the defendant was proportionate in the circumstances and there was no violation of the defendant's Convention rights, nor, I should add, was there any procedural impropriety amounting to a denial of a Convention right.

Overall Conclusion

109. Having therefore considered all the various grounds of this claim, and the numerous submissions relating to them, my overall conclusion is, for the reasons given in this over lengthy judgment, that this claim must be dismissed.
110. MR LEWIS: I appear for Lambeth for Mr Edwards. In the light of your Lordship's judgment, I would ask your Lordship to dismiss the claim for judicial review and make an order for the payment of the council's costs. There may be some matters of detail on which both parties need to address your Lordship in due course as to that, but I gather from Mr Jones that he may have submissions to address your Lordship as to the issue of principle on entitlement to costs, so I will give way and address those if he does.
111. SIR MICHAEL HARRISON: Thank you very much.
112. MR JONES: My Lord, yes. My first position is costs are a matter of discretion for your Lordship. That is first rule as we all know. In the light of your Lordship's judgment, your Lordship's criticism, first of all, of the behaviour of the local authority in responding and providing a clear response to my client's when requesting the Scheme of Delegation.
113. Secondly, your Lordship's comment in respect of paragraph 4, being, first of all, less than happily drafted in respect of our first point, as to whether indeed it covered section 11 notices. And then your Lordship, although finding against me on the point relating to "as set out", your Lordship did so on the basis of a rejection of my learned friend's principal argument so as to justify the Scheme. Your Lordship, if I may say so, took a different point, quite entitled to do so, saying that the absence of a scheme set out was proof that they could not have intended it. But that wasn't the justification my learned friend gave. My learned friend gave the justification that the Scheme should be divided into those that were sub-delegated and those that were ancillary and your Lordship rejected that.
114. Your Lordship then went on to deal with the question of the sub-delegation and the practice of this authority to sub-delegate under one scheme and then, when that scheme goes defunct, not to re-sub-delegate. And your Lordship expressed the view that, in terms, that was unsatisfactory and an indication to the local authority that they must review that practice, because of its lack of transparency. Your Lordship will recall that the submissions I made on the importance of transparency were also taken from the constitution of the local authority which stated a desire that its schemes should be transparent.
115. So, my Lord, in my submission this -- the local authority -- a way of reflecting the degree of censure as to the local authority's not just conduct but also the failings of the Scheme of Delegation and the practice that the local authority has pursued, they have had the benefit of your Lordship's judgment in giving them, if I may say, the benefit of the doubt in the case, but they should not have, if I may say, the benefit of the award of costs for the privilege. That is a matter that, in my submission, deprives the local authority of its costs in its entirety.
116. My Lord, could I then turn specifically to partial elements if your Lordship were to consider awarding the local authority costs, which they shouldn't have in any event. They should not have their costs up until 16th August 2007.
117. SIR MICHAEL HARRISON: Sorry, 16th August?
118. MR JONES: 16th August 2007, my Lord, in respect of the Scheme of Delegation. That is by reference to Mr Flockhart's second witness statement, just for your Lordship's note.
119. SIR MICHAEL HARRISON: So sorry, could you give me a moment? They shouldn't have their costs up to 16th August in respect of the Scheme of Delegation because?
120. MR JONES: Because up until that time the local authority was relying on the wrong Scheme of Delegation. So on its own case, the case they were putting forward to the claimant and to the court could not have succeeded in my submission.
121. My Lord, in respect of the second group of grounds in respect of the failure to take account of material considerations, my Lord, I say that they should not have their costs up until 19th September 2007.
122. SIR MICHAEL HARRISON: September?
123. MR JONES: 19th September 2007, supplementary bundle 77 is when the witness statements start, and that is when one gets the explanation as to the consideration of the fall-back position. And, my Lord, I say that by reference the guidance of the Court of Appeal has given in the Carlton-Conway decision, to which your Lordship referred, that local authority officers under delegated powers making decision, particularly enforcement decisions, should keep a contemporaneous note of what they took into account and what they didn't. And that guidance from the Court of Appeal has not been followed in this case because the local authority had to rely upon supplementary witness statements which members of the public wouldn't have known about unless you launched judicial review proceedings and subsequently get permission on those grounds. That relates to the fall-back position.
124. In respect of the proportionality point, my Lord, I say the local authority should not get any costs in respect of the proportionality. The local authority failed to take into account something it should have taken into account.
125. Your Lordship obviously has ruled against my submission that Article 1 to the First Protocol has a procedural nature and your Lordship have gone on to rule on the basis that your Lordship makes a decision and against me, but, my Lord, insofar as whether the local authority should have taken into account the material consideration, it is plain that it should have done and there was no explanation in accordance with your Lordship's finding that they had. So they should be deprived of their costs in respect of that argument.
126. My Lord, the final point I just make, and I don't think there will be any dispute about this, just so it is on the record, at the permission hearing before Sullivan J, in accordance with the court's practice, the respondent, even if a respondent is successful, in this case the respondent or defendant was not successful, in defeating an oral permission application, the normal position, it's in the White Book at 54.12.5, is that the defendant does not get its costs and it doesn't get its costs if it is ultimately successful. So that's just the costs of the permission hearing. There probably won't be a dispute about that.
127. So, my Lord, those are my submissions. A general point in the light of your Lordship's findings, that cumulatively that this local authority, having had the benefit of the doubt, if I may it put it like that, on the law, its procedures were plainly wanting and it should be deprived of its costs and then -- in its entirely, and then, in any event, on the delegation up to 16th August, in respect of the fall-back up to 19th September.
128. SIR MICHAEL HARRISON: One moment. Is that right? It was 16th August in relation to the Scheme of Delegation.
129. MR JONES: That's right. And no costs up to 16th August 2007. In respect of the fall-back position no costs up until 19th September 2007. That is when those witness statements were filed. And in respect of the proportionality no costs at all because your Lordship found that they failed to take into account what they should have taken into account.
130. SIR MICHAEL HARRISON: Thank you very much. Mr Lewis.
131. MR LEWIS: I will take the points in order, but a little introduction if I may, which is to say, or to remind your Lordship, if a reminder was necessary, the claimants have lost ultimately on all points.
132. The arguments in relation to the Scheme of Delegation, which are timed to certain dates we'll come back to in a second or two, but the Scheme of Delegation point no costs until 16th August 2007, or the material consideration argument -- considerations arguments no costs until 19th September 2007. Effectively that is an argument if we, the claimant, had only known that that is what the council were saying we might not have brought this claim. But, nonetheless, my Lord, the circumstances of the claim, even though this is a judicial review before your Lordship, are pretty closely comparable to hostile litigation. We've got very many points being taken on the lawfulness of the council's action and even to the point of having a damages claim, which falls by the wayside now, but given that we are pretty much dealing with hostile litigation, my Lord, no substantive or good reason, in my respectful submission, for departing from the normal situation, that the defendant should be entitled to all of its costs in succeeding and defeating the claimant's claim.
133. Again, my Lord, there were observations in the course of your Lordship's judgment that I made a note of, as my learned friend did. Your Lordship stated, for instance, that the council had been less than helpful in providing the details of the Scheme of Delegation and, your Lordship, of course, has made the important point which I am sure is noted behind me, that there is a need for reviewing the Council's Scheme of Delegation in terms of making sure that all documents or updates are incorporated properly into that Scheme. As I was just saying, my Lord, I have no doubt that that is taken on board. But, again, my Lord, in my respectful submission that is not a reason why the council should be deprived of their costs.
134. Equally, my Lord, there are things that should be said on the other side. As your Lordship has noted, there have been numerous arguments run in this case which have not succeeded. One of them, the ground about engaging in Enforcement Services Limited rather than doing it through offices of the council, was one in respect of which they did not have permission but they added it into the general submission in seeking to strike down the council's action and again were not successful in that.
135. So, my Lord, that was my introduction. I think I said it was short one, it didn't prove to be a short one in the event, but the general point, my Lord, no good reason for departing from the general principle that costs should follow the event here.
136. As to the question of no costs on the Scheme of Delegation point up until 16th August 2007, which 16th August 2007 being the date of Mr Flockhart's second witness statement, when he put in, as it were, the right Scheme of Delegation, well, again, my Lord, first of all, it appears from the documents, and your Lordship referred to this in the course of the judgment, that the 2005 Scheme was in substantially similar terms and your Lordship even quoted from the paragraph which was in the same terms. From memory it is page 43 in the main bundle before your Lordship. But, again, that is one point in relation to that.
137. My second point in relation to that, my Lord, is that equally it is not as I was saying in my, I am afraid, over lengthy introduction, it is not really as if the claimants would have said, on receiving the right seem of delegation that that was an end to their argument. No, of course, they proceeded with their claim. They didn't withdraw that element of the criticism of the council and they have maintained it all the way in front of your Lordship until your Lordship has ultimately dismissed the argument.
138. Again, my Lord, your Lordship has dismissed that argument on a slightly different basis from the basis on which it was put before your Lordship by Mr Edwards, but, nonetheless, the Scheme of Delegation relied on by the council over the years, and subject to the criticisms which you have identified, nevertheless is an operable Scheme, but not one which justified the making of the challenge in this case.
139. Moving on, my Lord, to the taking into account of material considerations argument. It is said there the council should not have any costs in relation to the second issue.
140. SIR MICHAEL HARRISON: It was the fall-back.
141. MR LEWIS: The fall-back argument. I was looking for the date, my Lord.
142. SIR MICHAEL HARRISON: 19th September.
143. MR LEWIS: And what is said there is that there should not be any costs in relation to that date. Thank you, my Lord. It is pointed out -- there is Carlton-Conway and that says you have to have contemporaneous note and matters of that sort. Well, in order to assist with transparency in these things. Yes, my Lord, as a matter of practice that may be appropriate, but then, again, my Lord, we are in a situation where, as your Lordship ultimately -- I will come back to this on proportionality -- your Lordships has acknowledged this is a case where there was an advertisement put up in the wrong position. The officers took the view that they did, knowing, as your Lordship has seen from the contemporaneous documents, that there was this express consent in existence, that was referred to in the delegated officer's report come what may. So on that basis, my Lord, again, it is hard to see how the submission of further evidence to supplement that point again should result in the council being deprived of any of its cost in relation to that issue. Again my reference to the date that your Lordship has.
144. On proportionality. Again, my Lord, this matter is something which pre-eminently is something in respect of which the claimants cannot say, if only we had known what the decision would have been, because as acknowledged on both sides, my Lord, the decision in relation to proportionality was something that fell to your Lordship ultimately in any event and they have lost on that point too. Again, in circumstances where, as your Lordship has acknowledged, there is a substantial impact on visual amenity, perhaps less impact in relation to the highways implication, but, again, my Lord, a matter that eminently the claimant could have looked at before bringing the council to court and deciding that it was not a matter in respect of which they would have succeeded.
145. So in that respect I renew my request on behalf of the council for all its costs, subject, as my learned friend says, under general principles, and it is covered in the Practice Direction under Part 54, paragraph 8.6, a respondent or defendant could not ordinarily or generally get their costs of appearing at a permission hearing.
146. SIR MICHAEL HARRISON: So your request for costs does not include costs of the permission hearing?
147. MR JONES: Yes, putting it that way round.
148. SIR MICHAEL HARRISON: Thank you very much. Anything in reply?
149. MR JONES: Just two points in reply. My Lord, firstly, in respect of the point my learned friend makes about Enforcement Services Limited. There was an issue between the parties whether or not permission had been granted, but just for the record it was not the case that it was a point sprung by me in the skeleton argument for these proceedings. It had been filed in a reply to the acknowledgement of service way back early in the proceedings, so it was a live point for a long period of time. I just wanted to say that for the record.
150. And, secondly, also for the record, in respect of proportionality, my position, as your Lordship will know, on proportionality was that a failure to take account of proportionality could lead to quashing because of the submission which your Lordship addressed that I drew attention to Lord Hoffman's passage that Article 1 contains procedures, so therefore it could be quashed. And my agreement, just so that it is clear to your Lordship, was if your Lordship was against me on that point, I agreed with my learned friend that your Lordship then had to go on and make the decision. But I think it is not right to say that there was -- my position was that, in any event, your Lordship had to go on to consider it. It is only in any event if your Lordship was, as your Lordship was, against me on failure to take into account.
151. SIR MICHAEL HARRISON: I certainly understood you in your submissions as saying that, in any event, I had to decide it.
152. MR JONES: My Lord, I apologise if that is the position, but my position was, when I addressed your Lordship on it, was you had to take into account whether it was taken into account or not. The council's submission is that of my learned friend, based on the authorities, that it was always for the court to take it into account. I drew attention to the passage of Lord Hoffman in support of my proposition that if there was an error of procedure that could go to the light. My submission then was if your Lordship was against me on that you would, in any event, then need to do it. So I apologise. I don't think anything turns on it because your Lordship was against me on that procedural point in respect of Article 1 to the First Protocol, but I just thought it was important, my Lord.
153. My Lord, in response as generality to my learned friend's point of saying, well, these are hostile proceedings, I didn't understand that, my Lord. No more hostile than any other judicial review proceedings. The parties are inter partes and very often in planning cases quite a lot of money is at stake.
154. SIR MICHAEL HARRISON: Yes, thank you.
Judgment re Costs
155. Mr Lewis on behalf of the defendant has asked for the costs of these proceedings, saying that the normal rule should apply.
156. Mr Jones on behalf of the claimant says, firstly, that should not be so because of the degree of censure contained in my judgment about the defendant's behaviour and some shortcomings mentioned by me in my judgment. For those reasons Mr Jones says that the defendant should not have their costs.
157. I cannot accept that. In my view the normal rule should apply, subject to the consideration of the individual points subsequently raised by Mr Jones.
158. The first individual point raised was that the claimant should not have to pay the defendant's costs up to 16th August 2007 relating to the Scheme of Delegation because the defendant had been putting forward the wrong scheme up to that point. I view that point also as coloured by my remarks about the way in which the defendant approached the matter in correspondence. The two, to an extent, can go together. I think it is appropriate in the circumstances, in view of the remarks that I have made about that, that the defendant does not get its costs up to 16th August 2007 relating to the Scheme of Delegation.
159. Next, Mr Jones says the defendant should not get its costs up to 19th September 2007 relating to the failure to consider the fall-back position because that was the date when the witness statements were filed. He relies on the Carlton-Conway case, mentioning the desirability of there being a contemporaneous record.
160. I do not accept that submission. There was in this case a report which mentioned the express consent and also the witness statements were allowed by Sullivan J when he granted permission. There is nothing which, in my view, should deprive the defendants of their costs on that aspect.
161. Finally on the issue of proportionality, whilst it is right to say that I have concluded that the defendant did not take that aspect into account, I have formed the view myself that there was not a breach of Article 1 of the First Protocol. In those circumstances, I do not consider it appropriate that the defendant should be deprived of their costs on that aspect.
162. It therefore follows that my order will be that the claimant should pay the defendant's costs, save the costs relating to the Scheme of Delegation up to 16th August 2007. I also make it plain that the defendant does not get its costs relating to the permission hearing, there being no dispute about that aspect of the matter.
163. Is there anything further?
164. MR JONES: I am afraid there is. I have an application before your Lordship for permission to appeal, but your Lordship will be relieved to know it is not on all the grounds I pursued. It is focused principally on the Scheme of Delegation. And your Lordship -- it will be my submission that, in accordance with the appropriate test, there is -- the prospects of success are not unreal. In other words, there is a real prospect success, and/or in any even there is a compelling reason. This decision will be widely considered, as your Lordship will understand, on the area of local government and the approach to delegation of powers.
165. My Lord, can I indicate, I seek permission effectively for the points in relation to delegation. Can I begin, first, dealing with paragraph 4. Your Lordship indicated that in respect of the scope of paragraph 4 it was not happily drafted and that you saw some -- saw force in the submission by the claimant that it was restricted to town and country planning applications under the 1990 or associated acts, subsequent acts.
166. Secondly, in respect of the principal point, as to whether paragraph 4 and its reference to the planning powers of the town and planning applications as set out in the Scheme of Delegation meant that it referred to the authority rather than the powers. Your Lordship indicated that it was, again, a decision that you found not easy, and your Lordship, as I have indicated in our submissions on costs, rejected the principal submissions of Mr Edwards for the explanation as to how the Scheme operated. And in my submission it does leave -- it is a balanced decision, but there must be real prospects of success, in my submission, that the justification for the meaning of this Scheme, as put forward by the local less planning authority, and as rejected by your Lordship, could lead to a decision that the Scheme was, as the claimant submitted, one which did require somewhere in the Scheme of Delegation the setting out of those powers.
167. My Lord, then I turn to the sub-delegation points. My Lord, you had my submissions on those from the last hearing, but do I principally draw attention to what your Lordship said in judgment, that you found it not an easy judgment, and indeed that your Lordship considered it so unsatisfactory that your Lordship indicated that there should be a review of the local authority. It does raise a real point of importance because the substance of your Lordship's finding is that a custom and practice, to use your Lordship's words, of local authorities acting that a sub-delegation made under a different scheme that is now defunct is not renewed under the new Scheme of Delegation can nonetheless as a matter of law still amount to a delegation. My Lord, in my submission that is a -- your Lordship's finding will have potentially wide consequences which is, in my submission, a compelling reason, in my respectful submission for leave to appeal.
168. And then finally on the delegation point. My Lord, I do submit that the issue on Enforcement Services Limited is an important one. Your Lordship heard great submissions about the Scheme of Delegation to officers, but as your Lordship will have seen there was no scheme -- there was nothing in the Scheme of Delegation which allowed the actual execution of a notice to be carried out by a private contractor outwith the supervision of an officer. So the function was carried out, the actual removal, entirely by a private contractor. That, my Lord, does raise in my submission an important point of principle. If you need checks and balances in the Scheme of Delegation for an officer of the council, and we have seen the check and balances, it must be signed off by a senior officer, I do suggest that it then becomes, in my submission, a very important issue, that nonetheless a local authority, without any checks or balances, can authorise an individual, who is not an officer, to do something for which an officer would need to go through a Scheme of Delegation.
169. So, my Lord, I do say that your Lordship's finding in respect of Enforcement Services Limited goes to a very, very important issue in terms of local authority and the provision of services and, in particular, enforcement services as to the extent to which those powers may be entrusted, absent a Scheme of Delegation, to third parties.
170. My Lord, the final point is principally on the Scheme of Delegation. In respect of Article 1 to the First Protocol I would seek leave to appeal on this -- the issue of whether or not a local authority, which has failed to take into account proportionality, whether or not Article 1 has a sufficient degree of procedural element to bring it on the side of the case law which suggests that a failure of the local authority to take it into account is itself an error of law which cannot be remedied by the second stage by the court.
171. SIR MICHAEL HARRISON: Mr Lewis, anything to say in relation to those points?
172. MR JONES: Yes, my Lord, quick as I am able. First of all, my Lord, there is no realistic prospect of success on appeal. Dealing with the delegation point, my Lord, as your Lordship said, you preferred the defendant's interpretation as making sense of the system which they have operated for years. In my respectful submission, there is no realistic prospect of success in the Court of Appeal in relation to that matter. Similarly there is the sub-delegation argument relating to a defunct scheme. That is going to be a matter which will be subject to review, but it does not make what has been done before any worse in the light of your Lordship's decision in relation to the matters determined on by your Lordship.
173. Again, Enforcement Services Limited. That is said to be an important matter and the need for checks and balances where that kind of arrangement is concerned. In my respectful submission, that point simply does not get off the ground.
174. The point about Article 1, and whether the failure to take that into account is sufficient, whether there is sufficient in that to amount to a failure to take the Article 1 rights into account would amount to an error of law and so that it is fatal. In my respectful submission that does not get beyond your Lordship's clear conclusion, that ultimately what we are concerned with here is action which was proportionate on the council's part.
175. So beyond all of that, there is no compelling reason, my Lord, to take this further. It is a matter, albeit framed as a judicial review, which I characterised as hostel litigation, but ultimately it has failed on its facts and there is nothing here of greater wider benefit which needs to be resolved for the purposes of one's greater understanding of schemes of delegation generally, or sub-delegation, or the Article 1 point, my Lord. That is all I have to say.
176. SIR MICHAEL HARRISON: Thank you very much.
Judgment re Permission to Appeal
177. Mr Jones, despite the matters that you have raised, I am afraid I am not prepared to grant permission.