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
		17 May 2010

1. MR JUSTICE FOSKETT: There appears to be a very unfortunate background to this matter, the substantial responsibility for which is impossible for me to go into on the basis of the material before me. It does, however, have the appearance of a case where things seem to be getting out of all proportion.

1. In summary, the interested parties, Mr and Mrs Edge purchased a plot of land from the claimant, Miss Moore-Williams, within the curtilage of a property owned by the claimant called The Old Mill, Portbury in Somerset. That property was a Grade 2 listed building and the area within which it was situated was green belt. The claimant had obtained planning permission for the erection of a detached dwelling on the particular plot in 2004 and the interested parties purchased the site with the benefit of that permission in 2006. They applied for planning permission in 2006 on the basis of a revision, as I understand it, of the 2004 permission and that application was granted on 23 May 2006 by North Somerset Council, the Local Planning Authority. The permission was granted on the basis of certain specific plans and drawings.
2. During 2006 and 2007 the property was constructed. Unfortunately, it appears that issues developed between the claimant and the interested parties about where the boundary between this site and the remaining curtilage of The Old Mill lay. All this, and more, led to, it would seem, serious differences between them. Recriminations appear to abound on the papers that I have seen. As I say, it is not possible to determine where the fault lies for all this, and this aspect, of course, is not before me. However, I mention it to give a flavour of how relationships seem to have soured over time. I understand that there are County Court proceedings between the parties as well.
3. Returning to the matters that give rise to today's hearing, the building, when completed, was assessed by the Local Authority to have been 47-centimetres, approximately 18-inches, higher than authorised by the planning permission. As I understand it, the claimant contends that the constructed height was 1.5 meters or so higher than the approved height. At all events, given the Planning Authority's assessment of the height difference and given that it decided that a 47-centimetre different was a "material difference", it invited the interested parties to make a fresh application to authorise the development as constructed. As I understand it, they did so without prejudice to their contention that the building had been constructed in accordance with the drawings but, nonetheless, they did so. After various to-ings and fro-ings that are not material for present purposes, retrospective planning consent was granted, pursuant to a decision made by the Planning Authority on 7 May 2009. The revised planning approval was given the number 09/P/0443/F.
4. The claimant, through her solicitors, immediately challenged that decision and a judicial review pre-action protocol letter, running to some six and a half pages, was sent to the Local Authority on 12 May 2009. A substantive reply from the Local Authority was sent on 21 May 2009, in which it was indicated that the Authority would not set aside the decision of 7 May 2009, asserting that the Authority had, contrary to the assertions made in the claimant's solicitor's letter, throughout acted correctly in applying the planning law and policy. So that is how the issues were then joined and, in due course, the claimant issued judicial review proceedings in the form of an application for permission to apply for judicial review, that challenge relating to the decision of 7 May.
5. The detailed grounds settled by Mr Richard Harwood, who has appeared before me today, are in the papers before me. They formed part of the application received in the Administrative Court Office on 23 July 2009, and Mr and Mrs Edge were identified as interested parties. I have seen a copy of the application that was served on the Council on 5 August 2009, while the Acknowledgement of Service and the summary grounds for contesting the claim were lodged and served on 17 August.
6. The grounds upon which the claimant sought relief were challenged in the Acknowledgement of Service. The material grounds were as follows:
7. 1) The approach to housing and green belt policy was unlawful as a) the council's decision is irrational as the committee report contradicts itself on a fundamental matter and reaches a conclusion which is irrational given the committee's report's findings of fact, namely whether the proposal accords with Policy H/7 of the Local Plan; b) if, as claimed in the Council's pre-action protocol response, the Council relied upon an interim statement of policy called "Housing in Defined Villages Guidance Note" in its application of Policy H/7, this guidance note constituted an unlawful policy as it was adopted outwith the statutory regime; c) consequentially, the Council failed lawfully to consider whether the proposal was inappropriate development in the Green Belt and so whether very special circumstances had to be found which outweighed the harm caused by inappropriateness and other harm.
8. 2) The council made an error of law as to the interpretation of the 2006 planning permission (which was relied upon as a fall back) by applying a datum based on a drainage plan which was not part of that permission, and consequently understated the difference between the approved and constructed buildings.
9. 3) The Council acted unreasonably in failing to carry out a site visit when a) it was decided in 2008 to carry out a site visit (which never took place) on the identical and undetermined 2008 application; b) that site visit had not taken place; c) that there had been no material change in circumstances, and d) the impact of the building being in the Green Belt and the curtilage of a listed building had to assessed.
10. That represented the material grounds upon which the application was based and the matter was considered in the usual course on the papers by HHJ Bidder QC in his capacity as a Deputy High Court Judge on 17 October 2009. He concluded that it was arguable that the grant of planning permission on 7 May 2009 was a) irrational, having regard to the approach taken by the Council to the apparent lack of accord of the application with the Local Plan; and b) unlawful because of reliance on a guidance note adopted outside the statutory regime.
11. In the light of that conclusion, as often occurs, the Local Authority reconsidered its position and after, I imagine, discussions with the claimant's solicitors, agreed to the quashing of the decision. It decided to do so only on the basis of grounds 1a) and c) of the grounds advanced, and the statement drawn up for submission to the court setting out the reasons for agreeing the proposed consent order sets that out clearly.
12. I do not know to what extent the interested parties were party to the discussions but they were plainly aware of what was proposed by the end of January because they wrote a letter to the court, not, I think, copied to the claimant's solicitors, setting out their position. In that letter, which is addressed to the Administrative Court Office, they ask that the court does not quash the planning permission and that it is allowed to stand. They say:

"We would be totally devastated as a family to be put in the position of having an unauthorised home for a reason that we have no control over".

And they set out, in that letter, a number of specific matters that they would suggest ought to be taken into account. They raise other matters which, sadly, reflect on the matters which I referred to at the outset of my remarks. What they say in conclusion, at the penultimate paragraph, is this:

"We assume that after 14 months of fine-tooth combing through our retrospective application, any decision made by North Somerset Council which is found to be unlawful must be on a technicality rather than anything material which would directly effect the claimant. With this in mind, we ask again that our planning permission is not quashed and is allowed to stand".

13. As I say, that letter was written on 27 January before, as I understand it, the final position between the Local Authority and the claimant was agreed. Nonetheless, the interested parties sought further information from the Local Authority and they received, in due course, an email from Ms Louise Grover, Principal Area Planning Officer, in terms which I will quote. What the interested parties had asked was, in effect, why was the Council proposing to agree to the quashing of the order. The substantive part of the email from Miss Grover was in the following terms:

"In civil litigation, a party does not have to give reasons when it withdraws a claim or defence and consents to judgment so the Council will not be required to give any explanation to the judge. I am not able to go into detail as to the reasons why the Council has decided to submit in this case but I can explain the Council's position in general terms.

You have seen the permission order which sets out the two grounds on which the permission judge thought that Miss Moore-Williams had an arguable case. Those two grounds were not ones that had been raised before the Planning Committee in either 2008 or 2009. If the case continued, the trial judge would hear detailed evidence and submissions and would not necessarily reach the same position as the permission judge who had only had an outline of the Council's defence. Whilst the eventual trial judge, after hearing detailed evidence and submissions, would not necessarily find in Miss Moore-Williams's favour, the Council have a duty to the public to consider the risks and costs of continuing with the litigation in the light of the views expressed by the trial judge.

If the case had continued to be contested and the Council had lost at trial, the outcome would have been the same for you, ie the permission would be quashed and the application submitted to the committee for re-determination. The outcome for the public purse would have been significantly different, however, as a party who loses at trial has to pay not only its own legal costs but those of its opponent. The total costs of the Council could easily have been in excess of £100,000.

Having taken account of all the litigation risks and the costs of the litigation, the Council reluctantly reached the decision to agree to the permission being quashed".

The email goes on to say that the interested parties have their own right to make representations and advised that they took legal advice about the position.

14. That was the position as articulated on behalf of the Council to the interested parties. In the light of that the interested parties wrote again to the court, on 11 February this year, drawing attention to the financial implications which the Council had relied upon, at least in part, for arriving at the decision that it did. Referring to that particular email, reference to a figure of £100,000 by way of legal costs is a disturbing matter against the background of what really ought to be a relatively straightforward case.
15. Nonetheless, that email having been sent on 9 February, meanwhile, the terms of the proposed consent order had been agreed between the claimant's solicitors and the Local Authority and the last letter in the sequence I have seen is one from the solicitor for the Local Authority dated 23 February it 2010.
16. The following day the solicitors acting for the claimant wrote to the interested parties in terms, again, which I will quote partially:

"In order to settle the proceedings without going to court it is necessary for the claimant, the Council and you as interested parties to sign the consent order and statement of matters. Accordingly, please find enclosed the final agreed version of the consent order and statement of matters which have been signed on behalf of both the claimant and the Council. The proposed order does not require you to pay any costs. We would be most grateful if you would please sign and return the documents to us at the earliest convenience and in any event before 4pm on Friday 5 March.

The claimant and the Council have mutually agreed to settle proceedings on these terms only. Should you be unwilling to agree to the quashing of the planning permission, the claimant will be compelled to pursue the matter to trial. In the event the court agrees with our client and the Council that the planning permission was unlawfully granted, then our client will ask the court to order you to pay her costs from the date of this letter to the conclusion of the case. We anticipate that such a costs order would be made and that those costs would be over £10,000. In such circumstances, we suggest you seek independent legal advice but please bear in mind that this matter is now extremely urgent as it is listed for judgment in the High Court on 17 May 2010.

Whilst you have previously indicated to the court that you wish to appear at the hearing, you have not filed the grounds of resistance which would be required to enable our client and the court understand what your case is. If you wish to defend the proceeding then detailed grounds of resistance are overdue and would have to be filed very shortly".

17. There was no response to that letter and there is a follow up letter dated 11 March 2010, broadly along the same lines. As I observed during the course of the exchange with Mr Harwood this morning, the message undoubtedly being conveyed to the interested party was that, unless they agreed to the proposed order, they faced the prospects of a costs order in excess of £10,000 if the matter came to court. As it happens, the claimant and her team have come to court and the statement of costs prepared up to and including today is of some £16,500.
18. That matter, namely a request for the interested parties to agree, was pursued again in a letter of 30 March and the interested parties, having also written to the claimant's solicitors on 25 March, replied to that letter of 30 March in the following terms:

"In response to your letter dated 30 March, we confirm that we have not instructed lawyers and do not intend to appear at trial. We have already explained in our previous letter that we are not able to defend the council as we no idea what they have done wrong. This is why we also find we cannot just sign the consent for something we have no individual control over. The court are already aware that we are not going to defend the Council.

We have sent letters to court explaining our side of the story and we would ask that we are not punished for something the Council may or may not have done. My family and I have lived in our home for over 2 years, and the original 2004 planning permission was sold to us by the claimant for £175,000. We do not think it is unreasonable for us not to sign the consent form and extremely unfair to use the threat of costs in your letters as a reason for us to sign".

19. That really is where matters have stood. The interested parties have not been prepared to consent to the order that had been agreed between the claimant and the Local Authority in the terms that were set out in February this year but, equally, they do not put forward any grounds in law why the decision sought to be under review should not be quashed given the Local Authority's position. Speaking for myself, it is impossible not to have some sympathy with their attitude. Why should they agree to something which they are not sure that they should agree to? Plainly, they do not want to concede that the decision of the Planning Authority was wrong because they plainly see that as operating to their disadvantage. For my part, I do not think that their attitude has been, of itself, unreasonable, though I can see that it has made the path to securing an order for quashing the decision the more difficult. Let me turn briefly to that before returning to the question of costs.
20. As to the quashing of the decision, I cannot see any alternative but to do so. Judge Bidder, who considered the matter carefully, regarded the judicial review claim as arguable. The Council have either conceded it, or at least have conceded that it is arguable and, perhaps partly for pragmatic reasons, have decided that it should be set aside and I have no material before me in the form of argument or evidence which would really justify my taking a different view. It is theoretically open to a judge to take a different view from that which has been agreed between the parties and obviously I have, to the best that I can, considered that. However, as I have indicated, for the short reasons I have already given, I cannot see any basis for taking a different view.
21. So that will be the ultimate outcome of today's hearing, but should the interested party have to pay £16,500, or any part of it, for the process by which this position has been reached today? I am bound to say that, overall, I can see no justifiable basis for that at all. I am told by Mr Harwood, and I of course accept from him, that his team was advised by the Court Office that there would have to be a hearing. Notwithstanding that, I would have thought that some very much more truncated process could have been considered, involving consideration of this matter on the papers without the full preparation for a hearing and the apparent expenditure of £16,500. I accept that it would be necessary for a judge to have the matter explained clearly to him or her on the papers and that judge may wish to invite specific representations on paper as to the merits or otherwise of the quashing of the decision on legal grounds from the interested parties, but all that could have been conducted relatively cheaply and on paper without the full preparations that have been gone into in relation to today's hearing. To my mind, something along the lines of Mr Harwood's skeleton argument, plus perhaps little bit more, was all that would reasonably have been required in the circumstances. So, I have to accept, somewhat reluctantly, that some expenditure has been caused by the failure of the interested parties to engage in the process fully to date but perhaps if someone had explained to them that they might, in the circumstances, have submitted to the order proposed rather than consented to it then they might have taken a different view.
22. As I am sure will be apparent by now, I have no intention of ordering them to pay anything like £16,500 towards the cost of this exercise. The order I make will be that, as between the claimant and the Local Authority, the order will be in the terms they sought. So far as the interested parties are concerned, they will pay the claimant's costs incurred between 25 February and today in the sum of £1,500 plus VAT but that is as far as I am prepared to go.
23. Mr Harwood, thank you very much for your assistance. I took the trouble to go through it in some detail in case anybody wonders how I got to it and, of course, the interested parties themselves may wish to know what underlay my decision.