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
		5 September 2008

1. MR JUSTICE SULLIVAN: There is an application for directions before the court. A substantial part of the directions is not controversial between the parties. So it is sensible to start with those matters that the parties, and indeed the court, are agreed on.
2. The first matter to be incorporated in any order is that the hearing of the substantive application under section 113 of the Act is to be expedited. The hearing is to be listed before a planning judge in the week commencing 26 January 2009. It is to be listed with a time estimate for the hearing of three days, less judgment, with one day's prior reading.
3. The parties are to agree a core bundle and a bundle of the essential references in the authorities. The defendant is to file and serve a detailed defence to the claim by 30 September.
4. Those are the matters on which the parties are agreed. The matter on which the parties are not agreed is the application for interim relief under section 113(5) of the Planning and Compulsory Purchase Act 2004. That provides that in respect of the challenge under section 113 the court may make an interim order suspending the operation of the relevant document, wholly or in part, generally or as it affects the property of the applicant. The application is that the court should suspend the operation of certain provisions in the Development Plan, which is the Surrey Waste Development Plan document. Those policies are policy WD(2) (ii) of policy WD2, subparagraph (iii) of policy WD(5). The reference to the Clock House Brickworks Caple site in the key diagram, and the more detailed site map and key development criteria listed in respect of the Clock House Brickworks Caple site in the Development Plan document.
5. It will be noted from those references that although this is a challenge to the Development Plan under section 113, it is, for practical purposes, a challenge to the proposals for this particular site. It might be thought, therefore, that in principle an application for any challenge to a grant of planning permission for development of the kind described in the Development Plan document for this site, should, if at all possible, be consolidated with any challenge to the policies in the plan itself. That is for the obvious reason that there is bound to be a considerable amount of overlap, particularly in the background information in respect of both challenges. That is to say the challenge to a grant of planning permission in accordance with the Development Plan, and any challenge to the Development Plan policies themselves.
6. The background to the matter is that at present an application for planning permission, which upon its face would appear, at least in principle, to accord with the policies in the plan, is due to be considered by the relevant committee of the defendant on 3 October. The obvious consequence of granting interim relief would be that since the relevant Development Plan framework would be effectively held in suspense, it would not be possible to determine the application on 3 October. Any determination would have to await the outcome of the section 113 application.
7. There is no doubt, in the circumstances of this case, that the court has power to grant interim relief under subsection (5) of section 113. On the face of the claim form the challenges under section 113 are arguable. Mr Village would contend that they are strongly arguable. It is unnecessary to resolve that matter because whether or not interim relief should be granted depends in this case upon the balance of convenience, and in particular, what prejudice, if any, would be suffered by the claimant if interim relief was not granted. I have indicated that the obvious practical effect of granting interim relief would be to prevent any decision being taken by the defendant on 3 October.
8. What then would be the position if interim relief is not granted so that the defendant is able to proceed to a decision on that day? Clearly one cannot anticipate what might happen. There are a number of possibilities: (1), I accept Mr Village's submission that on the material present before the court probably an outside possibility, is that planning permission might be refused. Nevertheless this is a possibility that cannot be entirely discounted because the decision is one for the councillors, rather than the lawyers and the planning officers who advise them; (2) having considered the force or otherwise of the grounds of challenge under a section 113 application, the councillors might decide that the sensible course would be to defer any decision on the planning application until the section 113 application had been determined by the court. Whilst the lawyers would give their advice, it would be for the members to decide what course of action they wished to pursue.
9. The spectre raised by Mr Village, of course, is that CHECK those two things he submits that the realistic probability is that they will either grant planning permission, or resolve to grant planning permission, subject to a section 106 agreement. There is no evidence before the court as to the state of preparation of the section 106 agreement/obligation. It seems almost inevitable that there will have to be such an agreement or obligation, but the position is that if the agreement or obligation is sufficiently far advanced so that permission is able to be granted on 3 October, or shortly thereafter, then it would follow that if there are any other legal grounds for challenge of the grant of permission, the claimant would be able to pursue those by way of an application for permission to apply for judicial review.
10. The claimant is a parish council. Mr Village is at pains to emphasise its lack of financial resources, and I readily accept that the parish council would be most unwilling to embark on costly litigation and would not wish to expose itself to the risk of additional costs. However, if there is a real possibility that a grant of planning permission, if it occurs on or shortly after 3 October, would be challenged on other grounds, that is to say grounds other than the unlawfulness of the Development Plan, which the defendant would be bound to take into account in deciding whether or not to grant planning permission, then it would seem desirable in principle that those additional grounds, provided they did not add unduly to the cost or length of the section 113 hearing, should be rolled in together and joined with that hearing. Mr Village far from submitting that there would be extensive other grounds, rather was at pains to emphasise that the principal ground was the lawfulness of the Development Plan, and that any other grounds of challenge might be relatively few and/or brief. If that be the case, it seems to me that adding them into the section 113 proceedings would not significantly increase the costs either of the judicial review claim form, and/or of any acknowledgment of service by the defendant. That would be because it would be possible to simply cross refer to the earlier documentation. It would be wholly unnecessary to reinvent the wheel.
11. Mr Village submitted that such a course might expose the claimant to the possibility of additional costs because of the possibility that the applicant for planning permission might seek to intervene as an interested party in any judicial review proceedings. He submitted that the applicant for planning permission in respect of the site would be most unlikely to be able to intervene in the section 113 proceedings. He referred me to the decision of the court of appeal in the R (on the application of) George Wimpey UK Ltd v Tewkesbury Borough Council [2008] EWCA (Civ) 12. It is to be noted that that was a decision of the Court of Appeal on an application for permission to appeal so it is questionable as to the extent to which it is binding authority, in any event. The Court of Appeal referred to a decision of Judge J, as he then was, under section 287 of the Town and Country Planning Act 1990, the predecessor of section 113 in the 2004 Act, which makes it clear that in such challenges the court has a discretion to permit parties other than the local planning authority, whose plan is being challenged, to appear if injustice might be perpetrated against them, but this is a discretion which would be rarely exercised.
12. So the starting point is that if the court was satisfied that in order to avoid an injustice to the applicant for planning permission in respect of this site, it was appropriate that it should be heard in the section 113 proceedings, it would have the power to make an appropriate order to that effect. If one looks at the position under the judicial review proceedings the recipient of the grant of planning permission would undoubtedly be an interested party and would be permitted to participate. If, and in so far as the interested party added nothing of substance to what was already being argued by the defendant local planning authority, then it is difficult to see that any adverse costs order in respect of the interested party's costs would be ordered against the claimant. In practice, although the Bolton rule applies to statutory appeals it, is applied in judicial review challenges in the environmental field. Not least bearing in mind the obligations of this country under the Arhus Convention.
13. It seems to me that the spectre of additional costs raised by Mr Village, far from being a reason for granting interim relief, is rather a very powerful reason for making an order, which would ensure that if, and in so far as there is any challenge to any decision taken on 3 October, then that challenge is heard together with the section 113 challenge. Such an order will have advantages not simply in terms of costs for the parties, also in terms of the court's time, given that there will not have to be a duplication of preparation time, but also, of course, it will mean that any challenge to the decision on 3 October will, in effect, be expedited, because it will be heard in the week beginning 26 January 2009. Thus it seems to me that if, and in so far as, there are additional grounds of challenge, to whatever it is that is decided on 3 October, then it is highly desirable and in everybody's interests that they ought to be heard together with the section 113 challenge.
14. That leaves the last possibility, which Mr Village canvassed, which is that the section 106 agreement is not ready, so that all that there is is a resolution to grant planning permission with a subsequent grant of planning permission only when the section 106 agreement has been finalised. He submits that that might be after 26 January 2008 and that the claimant might wish to keep its powder dry until such time as planning permission was actually granted. If that is the position, and the claimant wishes to keep its powder dry, well then any order, which I make, will enable it to do so.
15. In those circumstances it seems to me that conceivable prejudice could arise as a result of refusing interim relief since by definition of Mr Village's argument he would not need to apply for judicial review in respect of any grant of planning permission until the grant was actually issued. There may, of course, be circumstances if the grant of planning permission is made, say in December, when issues might arise as to whether or not it would be appropriate to hear any challenge in January. It seems to me that those are practical issues which can be dealt with perfectly sensibly by way of a liberty to apply provisionally. If it is right that the claimant is anxious to avoid costs, no doubt sensible arrangements could be made to ensure that there were abbreviated procedures to enable any challenge, it might have, to a later grant of planning permission prior to 26 January next year to be conjoined with the section 113 challenge. It is unnecessary to attempt to resolve those matters at this stage.
16. The short answer to the application for grant of interim relief is that refusing to grant interim relief will not cause prejudice to the claimant at all, rather there is likely to be more prejudice to all parties if no attempt is made to conjoin any possible challenge by way of judicial review to a decision to grant planning permission, or a grant of planning permission, and the section 113 challenge.
17. For those reasons, I refuse the application for interim relief, and direct, I am perfectly happy for counsel to consider in more detail the precise wording of the direction, but the direction would be that any application for permission to apply for judicial review in respect of a decision taken by the defendant on 3 October should, if permission is granted, be joined to the section 113 challenge and heard as part of that challenge in the week commencing 26 January 2009. I will further direct that any application for permission to apply for judicial review should come before me for my determination. I would also include a liberty to apply provisionally.
18. It seems to me that such an order enables, but does not compel, the claimant to challenge a decision other than the grant of planning permission, for example, a decision to I minded to grant a decision on 3 October. If the claimant chooses not to take up that possibility, it will not have suffered any prejudice.
19. Those are my decisions. I am sure an order can be drawn up to incorporate those. Unless there is anything else that.
20. MR DRABBLE QC: I have omitted from the order. Any more for any more? Can I check, Mr Village, is there anything more in your shopping list that you think ought to be included?
21. MR P VILLAGE QC: I was just checking. I think you said a planning judge, I took it to mean that that was you.
22. MR JUSTICE SULLIVAN: It is likely to be me. I have said direct any application for permission to me. I have not specifically reserved this case to myself. It will probability be me.
23. MR P VILLAGE QC: You said the first order was a planning judge in the week beginning 26 January.
24. MR JUSTICE SULLIVAN: I might fall off my perch by then.
25. MR P VILLAGE QC: Could we say a High Court planning judge, my Lord. It is an important case.
26. MR JUSTICE SULLIVAN: I think the polite way to put it if you would include the associate in the order Mr Village I am going to ask you and Mr Drabble to draw up an order to give to the associate "This case is not suitable for hearing by a Deputy High Court Judge". I think that is the polite way to put it.
27. MR P VILLAGE QC: There is only one other point. This is a point Mr Drabble and I have discussed I think we will probably tweak the point to 3 October. I will state my mortgage on the fact it will not be determined on 3 October.
28. MR JUSTICE SULLIVAN: You could easily tweak it by saying on 3 October all, or such date, as the meeting may be adjourned to" or something like that. The liberty apply comes in. If they say ,"We are adjourning this meeting until 24 December", then you will be able to apply and say it is all nonsense and we cannot possibly start something. The fact of the matter is I think there are a number of self-regulating factors in this. The county knows if it wants to precipitate a challenge in sufficient time for it to catch up with the 26 January date, it has to take a decision PDQ. If it does then there will be the possibility of such challenge and you wil decide whether or not it is appropiate to make it. I agree with the idea of tweaking it in the way suggested.
29. MR DRABBLE QC: That leaves the issue of the costs of today. I apply for on the basis of the substantive issue which today has been concerned with, and being in dispute, is the application for the interim relief which would fail for the reasons set out in our submissions. We do apply for the costs of today, in any event.
30. MR P VILLAGE QC: I resist that. First of all, the most important point related to today is we would be here in any event, because we would have to ask the court for expedition.
31. MR JUSTICE SULLIVAN: Mr Village, what I am mind to do, I do bear in mind this is an environmental case, I am very conscious that the costs have already been wracked up in this, I would make effectively call it a defendant's costs in the cause order ie if Mr Drabble wins at the end of the day he gets the costs of today. If he does not, he does not. Can you do better than that?
32. MR P VILLAGE QC: I can only make one counter proposal. That it should be that half of the costs of today should be the defendant's costs in the case, and the other half should be the costs in the case because of the need for dealing with the other direction.
33. MR JUSTICE SULLIVAN: You could put some of the other directions in writing probably actually.
34. MR P VILLAGE QC: The expedition would not necessarily require Mr Drabble or me. We will come on to that in a moment.
35. MR JUSTICE SULLIVAN: You are so persuasive I accepted expedition without argument. I might have been more difficult if Mr Straw only had turned up. I might have given him hell. You say a proportion of the costs of today. What do you say about that, Mr Drabble?
36. MR DRABBLE QC: I repeat what I have already said, that in substance the need for today's hearing was the interim relief application.
37. MR JUSTICE SULLIVAN: I think the reality of the matter is that substantial costs of the hearing were due to the interim application and, in any event, a defendant's costs in cause of those costs to be the subject of a detailed assessment, if not otherwise agreed, fairly meets the justice of the case.