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
		11 February 2008

RULING 1 of 3
1. MR JUSTICE FORBES: These proceedings relate to the application made by the Staffordshire Moorlands District Council ("the Council") under section 288 of the Town and Country Planning Act 1990, whereby the Council challenges various decisions of the first defendant's Inspector, and in particular the Inspector's decision on a substantive planning appeal, which is referred to as Appeal C.
2. The point I have to deal with by way of a preliminary matter relates to the timing of the issue and service of these proceedings. The Inspector's relevant decision was reached on 26 January 2007. Under the provisions of section 288(3) of the 1990 Act-

"(3) An application under this section must be made within six weeks from the date on which the order is confirmed (or, in the case of an order under section 97 which takes effect under section 99 without confirmation, the date on which it takes effect) or, as the case may be, the date on which the action is taken."

3. It is common ground in this case that the date of the relevant decision is 26 January 2007. There is an issue between the parties as to how the six-week period within which the application under section 288 must be made is to be calculated. The reason for that is that the proceedings in question were issued on 9 March 2007. Stated very shortly, the second defendant, Mrs Cartwright, submits that that date was one day too late and failed to meet the requirements of the time limit under section 288 of the 1990 Act.
4. It is common ground that the time limit under section 288 is to be strictly observed. If these proceedings were issued one day late, then Mr Easton, on behalf of the Council, accepts that they would be a nullity. There is no provision in the rules or under the statute for extending the strict time limit imposed by section 288.
5. On behalf of the Council, Mr Easton has referred me to the decision of Okolo v Secretary of State for the Environment [1997] 4 All ER 242, and to a passage in the judgment of Schiemann LJ at page 247. The relevant statutory provision there being considered was section 23(4) of the Acquisition of Land Act 1981 ("the 1981 Act"). That section imposed a time limit of six weeks for an application to be made to the High Court of a similar type to that with which we are concerned in this case under the Town and Country Planning Act.
6. Section 23(4) of the 1981 Act requires that applications to the High Court concerning compulsory purchase orders have to be made "within six weeks" from the date on which the notice of completion or making of the order was first published. At page 247 of his judgment, Schiemann LJ said this:

"The point in relation to the six seeks is very simple and, to my mind, one of first impression. In my judgment if the notice is published on a Monday and you are given six weeks to challenge it, six weeks will have ended by midnight of the Monday in six weeks time. I equiparate six weeks with six times seven days. There are various cases to which reference has been made where, in the landlord and tenant field, one is construing periods of a month. There the courts have used what has been described as the corresponding date rule. "Months" is of course a rather more difficult word than "week" because "months" can be anything from 28 to 30 or 31 days and, therefore, they have no precise meaning. Parliament in the Interpretation Act l978 has given it a definition in relation to statutes passed after 1850."

7. Mr Easton submitted that, in the light of that guidance, the position in this case is clear. The six-week period has to be calculated as being six weeks from Friday 26 January 2007 until the Friday six weeks thereafter, which would be Friday 9 March 2007. Mr Easton therefore submitted that the Council did issue the proceedings within the six-week period prescribed by statute, albeit on the very last day of that six-week period.
8. In my judgment, that submission is correct, and I reject Mrs Cartwright's arguments to the contrary effect. It is clear that the decision was made on Friday 26 January 2007, and the six-week period allowed for by statute will have ended at midnight on the Friday six weeks thereafter, which is midnight on 9 March 2007. Accordingly, these proceedings were issued within time and are valid.
9. The next point that arises is with regard to service of the application. The relevant rule of court applicable to such applications at the time was Rules of the Supreme Court Order 94. Order 94, rule 2 provides as follows:

"(1) A claim form under rule 1 must be filed at the Crown Office, and served, within the time limited by the relevant enactment for making the application."

10. Mr Easton therefore accepted that the application in this case should have been served on the day that the application was issued, namely 9 March 2007 in accordance with the provisions of RSC order 94, rule 2(1), to which I have just referred. In fact, the proceedings were served on the first defendant some five days after 9 March, and on Mrs Cartwright some four days after 9 March. It is therefore accepted by the Council that the service of the application was not effective within the rules, and that therefore it is necessary for an application to be made to extend the time for service so as to render the service effective.
11. Mr Easton submitted that the failure to serve within the time prescribed amounts to an irregularity and does not invalidate the proceedings itself. I accept that submission. It is therefore a matter for this court's discretion as to whether time for service of the proceedings should be extended.
12. In Cala Homes (South) Limited v Chichester District Council [2000] 79 P&CR 430, the Deputy High Court Judge made the following observation:

"If the claim is made out, the applicants' interests would have been substantially prejudiced by what would have been the unlawful adoption of the relevant parts of the development plan. That is in itself in my judgment an interest of some importance not merely to the applicants, but potentially to the public at large. Weight can be properly attached to the public interest in enabling this challenge to be determined by the court in accordance with the relevant statutory provisions, against which the degree of risk of prejudice to members of the public and the interest of public administration in prompt and certain decision-making can and should be balanced."

13. Mrs Cartwright submits, understandably, that the rules of court are there to be observed and should be observed, and that in this case the Council has no proper excuse for failing to observe the court rules and should therefore live with the consequences. She therefore submitted that the necessary extension of time should not be granted. However, I accept Mr Easton's submission that one cannot ignore the overall context relating to these proceedings. As matters currently stand, the Secretary of State has consented to judgment in these proceedings whereby the Inspector's decision on Appeal C is to be quashed and remitted for re-determination. The Secretary of State has consented to an order in those terms on the basis that her Inspector has committed an error of law in his decision.
14. It therefore follows that if the application under section 288 were not capable of being challenged because leave to grant a short extension of time required for service of the proceedings is refused, a decision of the Inspector, which is acknowledged to contain an error of law of significance, would necessarily have to stand. In such circumstances, it seems plain to me that that outcome is contrary to the public interest and plainly unacceptable. In my view, the period of time required for extending time for service is very modest, and I do not accept that any real prejudice has been caused to Mrs Cartwright by the need to extend time for service any more than any prejudice was occasioned to the Secretary of State for the same reasons.
15. For those reasons, I am satisfied that it is appropriate to grant the necessary extension of time, and I therefore do so. Accordingly, I am satisfied that these proceedings are valid, have been properly constituted, and having regard to the extension of time that I have now granted, have been served within the appropriate period of time as extended.
16. That deals with the preliminary aspects of the matter. Where do we go from there, Mr Easton?
17. MR EASTON: My Lord, there is one other very small preliminary matter. The section 288 application originally sought to challenge the costs decisions.
18. MR JUSTICE FORBES: That is right, and you want to delete that?
19. MR EASTON: I want to delete that. There are some amended grounds and an application simply to delete the reference to the costs decisions.
20. MR JUSTICE FORBES: Mrs Cartwright, do you wish to say anything about the application to delete the costs challenge in the section 288 appeal?
21. INTERESTED PARTY: My Lord, I have to point out again we have all solicitors and barristers on the other side. They issue in defiance of the letter the Ministry sent to them that the costs were subject to judicial review and could not be entered into the High Court, the Administrative Court, with the appeal.
22. MR JUSTICE FORBES: That is accepted, and the purpose of the amendment is to remove it.
23. INTERESTED PARTY: That is accepted, yes, but it has caused extra work for everybody in the matter, including me. I have had to go through judicial reviews and appeals and all the procedure. I think that it is not just -- it is in the letter itself, and it states specifically that the costs should not have been brought into this matter at all, the 288 appeal. I mean, I can understand probably the lay person made the mistake and put them together, but not professionals.
24. MR JUSTICE FORBES: Of course, the Council are seeking to amend the proceedings to remove a claim that should not have been made, but it would be open to them, I think, to simply say that it is no longer pursued and not actually have an amendment. So it is a fairly academic exercise in reality.
25. INTERESTED PARTY: It is within your Lordship's discretion, and I will accept it.
26. MR JUSTICE FORBES: Sitting in this court it is by no means unusual, when the parties come before me, for the claimant to stand up and say: "There are six grounds of challenge in this matter, but your Lordship will be very pleased to know that the claimant is no longer pursuing grounds 4, 5 and 6; we are only concentrating on grounds 1, 2 and 3", and it would be open to the Council to take that approach in this case. They could say: "Well, given that nobody is going to allow us to amend, we are simply not going to pursue the claim in respect of the costs order because that is being dealt with elsewhere in more appropriate circumstances of a judicial review", which is how it should have been done. Now, we will come on to costs, I dare say, in a moment, but if I give permission to amend to delete that claim, it would be on the basis that the Council pay the costs of and occasioned by the amendment, and that nobody else does.
27. INTERESTED PARTY: Thank you, my Lord.
28. MR JUSTICE FORBES: Mr Easton, is there anything you want to say about what I have just been saying? Is there anything you disagree with?
29. MR EASTON: No, I agree with everything your Lordship says.
30. MR JUSTICE FORBES: In that case, I give permission to the Council to amend the claim, to delete the challenge to the costs order made in the section 288 application, and I do so on the basis that the Council is to pay the costs of and occasioned by the need to amend. (Pause)
31. What I have ordered is: I grant leave to amend the section 288 application to delete the claim in respect of costs. The costs of and occasioned by that amendment are to be paid by the claimant in any event.
Ruling 2 of 3
32. MR JUSTICE FORBES: Following the procedural decisions which I made in this matter and in which I gave an earlier ruling, Mrs Cartwright, the second defendant, has considered the position and has indicated that, subject to one matter of concern to her, she is prepared to consent to an order disposing of the application under section 288. The matter with which she is concerned is the terms of the draft consent order agreed between the Council and the Secretary of State, whereby paragraph 1 of the order is in the following terms.

"It is ordered that the application be allowed and that the decision herein of the first defendant given by decision letter dated 26 January 2007 be quashed on the grounds set out in the schedule hereto."

33. Mrs Cartwright has pointed out that there is nothing in the terms of the order which directs that the matter, original Appeal C, is to be remitted to the Secretary of State for reconsideration. I can understand Mrs Cartwright's concerns about this because it is of importance to her that her original appeal, the decision in relation to which will be quashed, will nevertheless be reconsidered and re-determined in accordance with appropriate principles. This would happen in any event as the result of the operation of law, but I do consider that it is important to Mrs Cartwright's peace of mind that the position be clarified.
34. The Secretary of State is not here present today, nor represented, so I am not in a position to alter the terms of the draft consent order itself since the Secretary of State is not here able to agree to that course being taken. However, I have suggested to Mr Easton and to Mrs Cartwright that I can deal with the matter in this way: having made the order by consent in the terms agreed between the parties, I propose to go on and make a further order that the original Appeal C is to be remitted to the Secretary of State for reconsideration and re-determination. At the same time, I grant liberty to the Secretary of State to apply to make representations in respect of that further order. Any such application is to be made to me within seven days of today. In that way, there will be an additional order to the original order by consent which enables Mrs Cartwright's concerns to be addressed.
35. In the light of the indication from me that I was prepared to take that course, Mrs Cartwright very sensibly and fairly agreed that there was no further objection to the terms of the original draft consent order, and accordingly she then consented to it. So the net upshot of the section 288 application is as follows:

"By consent I make the following order. Upon reading the Part 8 claim form herein dated 9 March 2007, filed on behalf of the above-named claimant in relation to the application under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), and pronouncing this order in open court without the requirement of the parties attendance, by consent:

(1) it is ordered that the application be allowed and that the decision herein of the first defendant, given by decision letter dated 26 January 2007 be quashed on the grounds set out in the schedule hereto; and

(2) it is further ordered that the first defendant do pay the costs of the claimant in respect of this claim on the standard basis, to be subject to detailed assessment if not agreed.

Schedule 1

The first matter is an application pursuant to section 288 of the Town and Country Planning Act 1990 (the 1990 Act) to quash the decision herein of the first defendant given by the Inspector's decision letter dated 26 January 2007.

The Inspector allowed the second defendant's appeal pursuant to section 78 of the TCPA 1990 in relation to a proposal for the construction of a two-storey, four-bedroom dwelling with single-storey double garage.

(2) The first defendant has carefully considered the said decision in the light of the particulars set out in the claim form and the evidence served in support of the claim. The first defendant concedes that the said decision should not be allowed to stand because there was an insufficient basis amounting to an error of law for the Inspector's conclusion that 'there is a residential presence on the site in the form of mobile homes and ancillary accommodation' (see DL26)."

36. As I have indicated, I have made that order by consent. In addition, I make the following further order in these proceedings, namely that the original section 78 appeal is to be remitted to the Secretary of State for her further consideration and determination. In respect of that order, the Secretary of State has liberty to apply to make further representations. Any such application is to be made within seven days of today.
37. That concludes, I think, the section 288 matter.
Ruling 3 of 3
38. MR JUSTICE FORBES: I turn now to the application for judicial review of the Inspector's consequential costs orders made following his determination of Mrs Cartwright's section 78 local planning appeals.
39. The Inspector made a total of four costs orders, three of which are the subject matter of these proceedings. It is convenient to refer to them by their alphabetic identification letters which are Appeals A, C, and D. The Inspector's decision on costs with regard to Appeal B is not the subject matter of challenge in these proceedings. The parties have agreed to dispose of this matter by consent, and Mrs Cartwright, who is an interested party in these proceedings, is also prepared to consent to the matter being disposed of by agreement. However, in the course of oral submissions to me, it became apparent that Mrs Cartwright was concerned about the reasons given, or explanation given, for the parties having agreed terms in relation to the application for judicial review. When speaking with the Administrative Court office, Mrs Cartwright and her friend, Mr McAfee, were told that before a matter of public law can be disposed of by agreement between the parties, there has to be an appropriate set of reasons justifying that decision.
40. When looking at the terms of the consent order, Mrs Cartwright noticed that the schedule to the order, which contains the reasons for disposing of the matter by consent, appeared only to deal with appeal C. She therefore raised these concerns in the course of submissions to me, and I can understand why she does. However, I have considered the matter generally, and although the schedule to the consent order does appear to refer only to Appeal C; it is clear both from the terms of the order itself and from the rather generalised words in sub-paragraph (3) of the schedule, that the reasons are intended to extend to all three costs decisions under challenge. However, having said that, for the avoidance of doubt, I confirm that I have read Mr Easton's written skeleton argument in relation to the costs decisions, and in particular paragraphs 27 to 35 in which he outlines the Council's case for submitting that the Inspector's costs decision in relation to Appeals A and D was irrational.
41. Having regard to all the material before me, I have come to the conclusion that, notwithstanding the somewhat limited expression of reasons given in the schedule to the proposed consent order insofar as it purports to deal with Appeals A and D, nevertheless the proposed consent order is one which I am satisfied it is appropriate to make. Insofar as the necessary reasoning justifying the parties' agreement to the terms of this order are to be elaborated beyond the schedule, I am satisfied that that can be done by reference to the written skeleton arguments in this matter.
42. Accordingly, I therefore make the order in the terms agreed between the parties and Mrs Cartwright, the interested party, which have been signed by all and which I now initial.
43. Right, I think that covers everything.
44. MR EASTON: It does, and I do have to make the application for costs as well as the application I made in relation to the date at which the Secretary of State's liability ceases.
45. MR JUSTICE FORBES: For the avoidance of doubt -- is it still 6 February for the Secretary of State?
46. MR EASTON: My Lord, yes.
47. MR JUSTICE FORBES: For the avoidance of doubt, the order for costs in relation to this matter, which forms paragraph 2 of the order itself, is to apply to those costs incurred up to and including 6 February 2008. That deals with the Secretary of State's position, and are you applying for costs in relation to Mrs Cartwright?
48. MR EASTON: My Lord, yes.
49. MR JUSTICE FORBES: Have you anything to add to what you said earlier today?
50. MR EASTON: My Lord, yes, the position is slightly different in relation to the judicial review because we did not have the procedural issues that one had to deal with in relation to the section 288 application.
51. MR JUSTICE FORBES: The schedule to the order could have been more comprehensively expressed. It is not surprising that Mrs Cartwright, having been given appropriate advice by the Administrative Court office, was concerned to ensure that adequate and proper reasons had been given for the parties' agreement to the order. The schedule to the proposed order does place almost its entire emphasis on Appeal C. So I am inclined at the moment, short of hearing any more persuasive submissions from you, to make no order as to costs on this one too.
52. MR EASTON: My Lord, as late as Friday Mrs Cartwright, through Mr McAfee, was raising on the face of it what were substantive arguments in relation to the judicial review proceedings, one of which was an e-mail sent at lunchtime on Friday, where a number of points were made, one of which was a costs award of (inaudible) relating to the behaviour of the parties and not to the outcome of the appeals. The reason for the costs order in this case was an unreasonable obligation. Section 106 of the TCPA 1990 was sought in connection with the planning application, and it is true to say that in the rest of that e-mail there is a reference to an in principle satisfaction that the consent order should be signed, but at least until Friday we had to proceed on the assumption that we were going to have to meet not only the substantive 288 application arguments made by Mrs Cartwright, but also substantive arguments in relation to the costs of judicial review. So it was not until Mrs Cartwright signed the consent order in court today that we knew that that was her clear position.
53. MR JUSTICE FORBES: Yes. What explanation have you got for my not having been provided with the bundle?
54. MR EASTON: I do apologise for that. There should be two volume ones and --
55. MR JUSTICE FORBES: I know what there should be, but there is not, and the one that is missing is the one in respect of which you are applying for costs against Mrs Cartwright, and in respect of which your clients were responsible for lodging the bundle but apparently did not, or if they did, they did not lodge it in such a way that it got as far as me.
56. MR EASTON: I can only apologise. I cannot provide an explanation other than that there should be three bundles. My Lord has not got three bundles. I think Mrs Cartwright had three as well.
57. MR JUSTICE FORBES: Is there anything else?
58. MR EASTON: My Lord, no.
59. MR JUSTICE FORBES: Is there anything you want to say about it, Mrs Cartwright? I do not propose to make an order for costs against you, but is there anything you to say?
60. INTERESTED PARTY: I think I will leave it.
61. MR JUSTICE FORBES: Very well. I am satisfied that this is not a matter in which it is appropriate to make any order for costs against the interested party, and accordingly I make no order as to costs.
62. Does that complete everything, Mr Easton?
63. MR EASTON: It does my Lord, yes.
64. MR JUSTICE FORBES: Thank you very much. Thank you very much for your assistance, Mr McAfee, you have been very helpful. Thank you very much, Mrs Cartwright, and I hope you have enjoyed your day in court. I am not sure most people do, but you seem to have been following it carefully and you seem to have been making sure that nothing slipped by me. Thank you very much.