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
		9 June 2010

1. MR JUSTICE WYN WILLIAMS: The parties have provided their typographical corrections. I have incorporated all the typographical corrections and made one or two slight amendments in the light of comments which are not strictly typographical corrections but with those introductory remarks, I hand down the judgment which I have given in this case.
2. The issue of the precise form of relief, if any, is to be debated hence I say nothing further about that at this stage. Thank you both for providing written submissions in advance so I know what the issues are.
3. MR HARWOOD: My Lord, as you will see from our submissions, we suggest it is appropriate to make a declaration that the decision to grant planning permission was unlawful.
4. MR JUSTICE WYN WILLIAMS: Yes.
5. MR HARWOOD: It will not effect the lawfulness and effect of the planning permission, if my Lord felt a need to add a few more words to the proposed declaration then clearly you could do that.
6. MR JUSTICE WYN WILLIAMS: I am not saying that I am against this, Mr Harwood. What I initially thought might be possible would be to frame a declaration in effect in a number of short phrases to coincide with the grounds of challenge that I had found (Inaudible) since otherwise one needs to almost read every word of the judgment which might not be everybody's choice. I am not sure that the form of declaration that you seek actually adds to the conclusion if you like. Let me just identify the relevant paragraph. Yes, under the heading "Summary Conclusions on the Grounds of Challenge", I sort of tried to draw it together what I had found and having thought about it, there is either your form of declaration or my provisional view about what was necessary actually add to that.
7. MR HARWOOD: My Lord --
8. MR JUSTICE WYN WILLIAMS: I mean, can I make this clear: I do not see the issue of whether you get declaratory relief as impacting upon anything, for example costs or who has won or lost or anything like that, so I can make that clear, it is simply the best way of tidying up the judgment sort of thing.
9. MR HARWOOD: Indeed, yes, my Lord, and perhaps the best way of tidying up a judgment -- perfectly happy if your Lordship wants that, we can put together a declaration which picks up the points in that paragraph -- is that of course of necessity is a 45 page judgment --
10. MR JUSTICE WYN WILLIAMS: Yes, precisely.
11. MR HARWOOD: It is a cracking read, it might be read --
12. MR JUSTICE WYN WILLIAMS: Well, it is very kind of you to say so but I doubt if anybody other than people intimately connected with Stephenson Street in Newport will be interested with it.
13. MR HARWOOD: Of course, my Lord, what we have in the present circumstances is that there will inevitably be planning decisions on this site in the relatively near future, whether that is any attempt to continue with cameras --
14. MR JUSTICE WYN WILLIAMS: Yes.
15. MR HARWOOD: -- or its redevelopment of the site so it is important that planning officers and everybody involved can say, "Right, we don't necessarily need to go to the judgment but we know that that decision was unlawfully taken, was not quashed".
16. MR JUSTICE WYN WILLIAMS: Yes. Right, well --
17. MR HARWOOD: Unless I can help further.
18. MR JUSTICE WYN WILLIAMS: No, no.
19. I mean, Mr Albutt, it seems to me that what Mr Harwood is asking for is not actually answered by your skeleton because there is obviously no question of me saying that the planning permission is unlawful --
20. MR ALBUTT: No.
21. MR JUSTICE WYN WILLIAMS: -- because I refused to quash it.
22. MR ALBUTT: Yes.
23. MR JUSTICE WYN WILLIAMS: So he is asking for something which is a bit different from what you have addressed so --
24. MR ALBUTT: Well, I thought I had addressed it, my Lord, because the point I make is it is really only the word "unlawful" that I object to. I tried to find some examples, I mean, for example, in paragraph 12 of my skeleton on page 4 --
25. MR JUSTICE WYN WILLIAMS: Yes.
26. MR ALBUTT: -- I took you to the Caswell case which was an example of Mr Justice Popplewell refusing relief on the basis of discretion but giving a declaration which says this is a point of public importance, there was a breach of the regulations, but never going so far as to say it is unlawful so I have no objection to -- in the same way that I also highlighted the position, I do not know whether your Lordship had an opportunity of looking at my references to the decision of Mr Justice Richards --
27. MR JUSTICE WYN WILLIAMS: Yes. Yes, I did, thanks.
28. MR ALBUTT: -- was when he simply made the point where in fact it had been argued by the claimant in that case that they wanted the word "unlawful" included, that was at paragraph 14 of the argument before Mr Justice Richards, and of course we know at paragraph 26 and 27 that what he preferred was the simpler approach because of course everything you want to find is in the transcript.
29. MR JUSTICE WYN WILLIAMS: Yes.
30. MR ALBUTT: There is nothing wrong of the declaration that says, "Oh, there was a breach of regulation 48 of the Habdas direction (As heard) for example", I have no difficulty with that but it seems to me it is quite inconsistent to have a declaration that the planning permission is unlawful and was granted unlawfully when of course you have not quashed permission. That is the short point.
31. MR JUSTICE WYN WILLIAMS: Except unless both Mr Harwood and I are making a false distinction it does seem to me that the use of the word "decision" in the proposed declaration is addressing a point in time anterior to the grant of planning permission.
32. MR ALBUTT: Yes, I can see that.
33. MR JUSTICE WYN WILLIAMS: It is that which Mr Harwood is asking me to say is unlawful and of course my judgment does say it is unlawful.
34. MR ALBUTT: Yes, yes.
35. MR JUSTICE WYN WILLIAMS: So I am not -- I do not think there is a point of principal against making it, it is just whether it is necessary, given the terms of the judgment and given, having re-read it, paragraph 100 in particular.
36. MR ALBUTT: My short point is: no problem with declarations about findings on the grounds or anything of that matter within the judgment, it is just the simple point about the use of the word "unlawful" as a finding and that is why, having looked at the decision on costs in the Gavin case, it just seemed a rather useful conclusion at paragraph 26:

"Everything that is in the claimant's version by way of detail can be gleaned in any event from my judgment and I regard to be authorised favour a simpler approach and therefore adopt the defendant's version."

Which was to exclude the word "unlawful".

37. MR JUSTICE WYN WILLIAMS: Yes, but if in Mr Harwood's formulation of the declaration the word "unlawful" was excluded it would not make any sense.
38. MR ALBUTT: No -- well, it would, my Lord, because --
39. MR JUSTICE WYN WILLIAMS: Well, unless I am being slow here it is paragraph 3, is it not?
40. "A declaration is made the decision of Newport City Council to grant planning permission et cetera was unlawful."
41. If you take out the "unlawful" bit it does not say anything.
42. MR ALBUTT: Well, what it would say, my Lord, by way of the declaration is that what I imagine we would do is highlight the grounds that have been successful.
43. MR JUSTICE WYN WILLIAMS: Well, that is a difficult point, that was my provisional thought about whether we would have a more comprehensive form of declaration.
44. MR ALBUTT: Yes, and it seems to me that is the approach that, for example, was taken in Caswell.
45. MR JUSTICE WYN WILLIAMS: Well, I do not think Mr Harwood is against that, he was just trying to simplify it.
46. MR ALBUTT: Yes. Well, my Lord, I think there is probably nothing I can further add, that is really the difference between us, but as you are not quashing the planning permission.
47. MR JUSTICE WYN WILLIAMS: Yes, well, that is clear obviously. I mean I started this hare running, I know that, Mr Harwood, so I do not want to be seen to be unduly difficult about it but sometimes you sit back and then read what you have written in the judgment and would a more comprehensive declaration actually say any more, except that you would use perhaps slightly more formal language, than paragraphs 100 and 101 of the judgment? Have a read of them to yourself and see if you would actually come up with anything more except that it would be in the order, I accept that.
48. MR HARWOOD: And, my Lord, it would --
49. MR JUSTICE WYN WILLIAMS: Sorry, 102 as well.
50. MR HARWOOD: My Lord, yes, and probably also I suppose 103 which makes the point it is capable of being quashed.
51. MR JUSTICE WYN WILLIAMS: Yes, exactly. So I am just wondering about how easy it would be for you both in truth to actually frame declarations in any way which was at the same time more comprehensive -- not more -- that would make any difference to those paragraphs.
52. MR HARWOOD: Well, my Lord, of course it would not affect the substance of the judgment, it only gives effect to it.
53. MR JUSTICE WYN WILLIAMS: Yes.
54. MR HARWOOD: The virtue it would have is that it makes clear to people who are dealing with the future of this site and who are interested in the future of the site, there are quite a few people in that category, that the decision to grant planning permission was unlawful and the extended formulation was set out and set out why, it would be of assistance.
55. MR JUSTICE WYN WILLIAMS: I follow that but would not anybody who is truly interested in the future planning permission of this site at least read paragraphs 100 to 103? I mean, I am not suggesting they would read it all but surely they would read those paragraphs.
56. MR HARWOOD: My Lord, it is quite a wide range of people. My Lord may be familiar simply -- not sure it is happening with my Lord's judgments but from press coverage of other cases, the challenge to airports policy in Heathrow as a recent example, where in the media and general presentation of it you find both sides argue that they have won and it causes great confusion so there is --
57. MR JUSTICE WYN WILLIAMS: I cannot prevent the ingenuity of the parties and their lawyers putting a spin on my judgment, Mr Harwood. I don't think I should even try.
58. MR HARWOOD: My Lord, (Inaudible) the virtue of a declaration is that it does become clear what went wrong in the decision process.
59. MR JUSTICE WYN WILLIAMS: All right. Well, I think what I am going to do is to say this: I do not think that the declaration in the form that you have suggested does anything other than tell someone that in certain respects the decision making process was unlawful and that is not enough in effect for the informed reader so if there is to be a declaration, and I am sorry to prolong the agony on this point, it has to be a declaration which in effect encapsulates paragraphs 100 to 103 of my judgment. I don't think Mr Albutt strenuously suggests that a declaration in those terms is wrong in principal.
60. MR ALBUTT: That is correct.
61. MR JUSTICE WYN WILLIAMS: So that I would invite you to draft suitable declaratory relief for my final approval, obviously you would not have to return to court again but on the basis that you are both prepared to come to declaratory relief which simply reflects paragraphs 100 to 103. I would make it in a form that you finally decide is suitable subject only, obviously, to my own ultimate supervision of it, all right? So that is the way we will deal with that.
62. Right. Costs, I think, next. Who has one? I have to say, Mr Albutt, I think Mr Harwood has substantially won so I think the ball is in your court to say the opposite.
63. MR ALBUTT: Well, my Lord, obviously you have seen my skeleton.
64. MR JUSTICE WYN WILLIAMS: Yes.
65. MR ALBUTT: The distinction that I draw in this case, for example draw the distinction with the Gurney case that my friend has referred to is that as indeed is made clear by the court at the very beginning of the judgment, is that it was a case where the issue of discretion was writ large as the most important part.
66. MR JUSTICE WYN WILLIAMS: Well, I think that is why Mr Harwood has very sensibly conceded that he cannot have all his costs.
67. MR ALBUTT: Yes.
68. MR JUSTICE WYN WILLIAMS: So the truth is -- and I do not wish to sound too difficult or hard on your clients -- but the truth is that but for the particular position of the Henry family, this planning position would have been quashed in all probability so your clients have only been saved in that sense by the position of the Henry family which seems to me to be a factor which militates in favour of the sort of order that Mr Harwood is suggesting, rather than the sort of order you are suggesting.
69. MR ALBUTT: What I say militates -- just to put it its condensed form -- what I say militates the case that is as I make, I hope, clear in the skeleton argument is that the issue of discretion, prejudice and relief in relation to that was writ very large almost from the beginning in this case by the order of His Honour Judge Vosper that I referred to in addition when the summary grounds of defence were (Inaudible) at an early stage on behalf of the defendant, the position was made absolutely clear, nowhere to relocate. Secondly, the family are going to remain there and really, I suppose, the question is, well, so obviously the claimants must have been addressing at an early stage, well, what was the prejudice to the claimant, for example?
70. MR JUSTICE WYN WILLIAMS: Well, yes --
71. MR ALBUTT: And so, my Lord, in your own judgment you say, well, the claimant does not rely on it --
72. MR JUSTICE WYN WILLIAMS: No, no, absolutely, but the countervailing argument to that is that although ultimately I have concluded as a matter of discretion that a quashing order should not be made, there is a public interest in the public knowing that planning decisions are made lawfully and the claimant was entitled to come to court to expose what they said were the flaws in the decision making process and they were never conceded. I mean, obviously as you and I discussed the case it became clear you had more faith in some points than others but that is by the by, I mean the point is the stance of Newport was, "We've done nothing wrong", and, I mean, I have decided, rightly or wrongly, that they have done things wrong.
73. MR ALBUTT: Yes, but, my Lord, the point I make the point and I do not need to elaborate on this because I know you have seen the skeleton but not all the 11 grounds have succeeded.
74. MR JUSTICE WYN WILLIAMS: No, I follow that.
75. MR ALBUTT: Also one bears in mind, and I say it with the greatest respect to those instructing (Inaudible) and my learned friend, is that even by the date of the exchange of skeleton arguments there was virtually no reference to the argument about delay or discretion. It is almost as if it was not considered to be a central point.
76. MR JUSTICE WYN WILLIAMS: No, that is because they have got it wrong but anyway that is by and by.
77. MR ALBUTT: Very discretionary point.
78. MR JUSTICE WYN WILLIAMS: Yes, yes, of course, and I was being flippant. On any view, I think, I Mr Harwood would have to accept that there was a strong probability that delay and discretion would feature once Judge Vosper said what he said.
79. MR ALBUTT: And you know what then became clear, there was no, if I may say so, there was no further information in the sense of any additional information really during the course of the hearing. All the issues were there on the matter of discretion, the absence of any prejudice to the claimant, and indeed -- I mean I am sure quite properly made, again I do not criticise my learned friend, but you will recall I mentioned it in the skeleton that of course it was conceded at the very end of my learned friend's skeleton argument at paragraph 43 that the quashing of the planning permission would not even require the removal of the family from the site so whilst I accept obviously your Lordship has clearly found that there are grounds for quashing it, I mean, was it not all academic at a very early stage and that is why, because the permission has not been quashed.
80. MR JUSTICE WYN WILLIAMS: Well, no, and I am sorry to be precise in my use of language in this context but if the claim had been truly academic, I would have dismissed it.
81. MR ALBUTT: Yes.
82. MR JUSTICE WYN WILLIAMS: Whereas I did not do that, I found that some of the grounds were proved and, I repeat, as far as I can see there is a public interest in alleged unlawfulness being litigated in this way so I do not think it was ever academic, what was hotly contested was whether or not a particular form of relief should be granted and obviously on that issue you won though not because of anything your clients did, as I said it is in the main relating to other factors.
83. MR ALBUTT: Well, of course I recognise the highest it is put is only 50 percent of the costs in any event but I make the point that if one -- and I know your Lordship has said, well, Mr Harwood in effect won substantially, I mean I would respectfully say that if the issue of discretion was raised at an early stage and not merely addressed and the defendant succeeds at the end of the day then that is at least an answer in the light of what your Lordship has said is our second suggestion is no order as to costs.
84. MR JUSTICE WYN WILLIAMS: Yes.
85. MR ALBUTT: If you look at who has won, and again I know your Lordship has indicated --
86. MR JUSTICE WYN WILLIAMS: Yes, yes.
87. MR ALBUTT: -- the relief sought was to quash the permission and that has simply not succeeded. That is why I say in the light of what your Lordship has indicated, even if I move away from my one third, two thirds argument, then my secondary argument is, well, no order as to costs and that sees justice between the parties on all fronts.
88. MR JUSTICE WYN WILLIAMS: Yes.
89. MR ALBUTT: But, my Lord, of course it is ultimately a matter for your discretion.
90. MR JUSTICE WYN WILLIAMS: All right. Thank you very much. Yes, on this issue, Mr Harwood, I do not propose to trouble you.
91. I regard the claimant as being the substantial successful party in this case which is the starting point under the CPR in relation to costs. It is true that on an important issue in the case, namely the form of relief to be granted, the defendant was successful but in this case that is to be tempered by the fact that my reasoning for exercising my discretion on relief in the way that I did was substantially influenced not by the defendant's conduct -- or for that matter the claimant's conduct -- but rather the very particular position of the Henry family who were for all intents and purposes the personal beneficiaries of this planning permission and so although the defendant succeeded in warding off a quashing order, its success is to be looked at in that light.
92. The claimant does not ask for an order that the whole of its costs should be paid. In my judgment that is realistic. Not all of the grounds succeeded and, as I have said, the claimant did not succeed in persuading me to grant a quashing order therefore what I have to assess is whether the claim which the claimant does put forward, namely that 50 percent of its costs should be paid, is reasonable and proportionate in all the circumstances.
93. In my judgment it is, essentially for the reasons advanced by Mr Harwood in his skeleton as elucidated orally and my view that the claimant was the substantial successor in these proceedings. It is not possible in cases of this kind to exercise one's discretion over costs in a very detailed way. One inevitably has to adopt a broadbrush approach and it seems to me that the order which the claimant seeks achieves broadbrush justice in this case but I am not with you on permission to appeal, you will have to go and persuade their Lordships over that, Mr Harwood.
94. MR HARWOOD: I am obliged, my Lord.
95. MR JUSTICE WYN WILLIAMS: Thank you both very much and as I said, I will deal with the form of the declaration in written form. I would not like there to be any further debate about it. If you cannot agree between yourselves just simply send me two versions and I will adjudicate. I do not want submissions about it. All right. Yes thank you very much.
96. Do not send any drafts to the court, by e-mail to my clerk, if you would. Because it is a Cardiff case it becomes all very complicated if we involve the court service, all right? So directly to me, thank you.