England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Sitting at: Manchester Civil Justice Centre 1 Bridge Street West Manchester M60 9DJ
		3rd December 2012

JUDGE WOOD:

1. By a claim form dated 6 July 2012, Mr Eatessami seeks to challenge a stopping order that was granted by the Secretary of State, effective from 28 May 2012, and published in accordance with the procedure under section 252 of the Town and Country Planning Act ("the Act"). Essentially, the procedure that is laid down in section 252 is one that proscribes certain time limits and certain steps that have to be taken whenever there is a stopping order applied for. To put those into context, it is necessary first of all to consider the background, and I will deal with that briefly.
2. This matter seems to have arisen when Dr Kumar, who heads up a medical GP surgery in Sovereign Street, decided that he needed to apply to develop the area around his surgery to cater for a significantly greater number of patients on his lists. Accordingly, he had plans drawn up, and because he owned all the properties abutting both sides of Sovereign Street, which was otherwise a dead end, he was able to obtain planning permission, which enabled him to proceed with the development. However, because Sovereign Street still effectively retained public rights-of-way, it was necessary for him to apply under additional provisions in the Act, and particularly section 247, to obtain the necessary stopping order.
3. By way of further background, although this becomes relevant at a later stage, Mr Eatessami had a property which he claims was accessed from Sovereign Street. He would like to have objected to the proposed stopping order, because he believed that it would have deprived him from accessing, or at least his lessee accessing, his property from Sovereign Street. However, Mr Eatessami did not give the necessary objection within a 28-day period of the publication of the appropriate notice as required under the Act.
4. At this point, I will deal with the provisions set out in the Act, because they have some relevance to the sequence which followed.
5. Under section 252 a procedure is laid down for the making of orders, and whenever an order is sought, the Secretary of State causes to be published in accordance with section 252(1) an appropriate notice in the local newspaper and in the London Gazette, containing or stating the general effect of the order that is to be made, and also placing in the relevant area of stopping up a copy of the draft order which is proposed. This is quiet significant, because it really starts the 28-day period during which objections can be raised by persons or statutory bodies that might be affected. Not only is there a publication in the newspaper, there is also a specific posting of notices under subsection 3 of section 252 which provides:

"...the notice to be displayed in a prominent position at the ends of so much of any highway as is proposed to be stopped up or diverted or, as the case may be, of the right of way proposed to be extinguished under the order."

This clearly enables those who do not regularly read the London Gazette, or indeed the local newspaper, which in this case was published, I understand it, once a week, to appreciate the extent of the order that is sought and to raise their objections, particularly if there was a significant public, or as here maybe private, right-of-way which was affected. Such a notice was published on 5^th April 2012.

6. It would seem that one of the complaints by Mr Eatessami is that there was non-compliance with subsection 3 in the way that the notice ought to have been posted at the end of the street. Be that as it may, matters progressed thereafter because having received no relevant objections for the purposes of this application, the Secretary of State then continued to comply with the requirements for the procedure under section 252(10) by publishing in the same manner, that is in the same newspaper publications, a notice that the order had actually been made as sought.
7. This is really the important trigger date, for the purposes of the application that has been made and the claim brought by Mr Eatessami, because by 24^th May the appropriate notice set out that there would be a stopping order made in relation to Sovereign Street. In other words, Dr Kumar was thereby obtaining the order that he had sought to enable his development to proceed.
8. One might have thought that that would be end of it, but it is not, and as in the case of any step taken by a public body, there ought to be a right of challenge particularly where an aggrieved person might want to argue that the particular order made was outwith the power of the public body, or that a procedural requirement had not been complied with.
9. On the face of it, however, section 284 appears to exclude such claims made with the qualification which I shall come to in a moment. Under section 284, the validity of development plans and certain orders, and that includes the stopping order that was made here, cannot be questioned in any legal proceedings whatsoever. Section 284(1) states:

"(1) Except in so far as may be provided by this Part ..."

In fact "this Part" of course is the relevant part of the Act, because section 287 goes on to provide an entitlement to question the validity of development plans and certain schemes and orders, including stopping orders that have been obtained under section 247 of the Act. Essentially, the procedure is one whereby an aggrieved person can make an application to the High Court complaining that the order has not been made within an appropriate power, or that a procedural requirement has not been complied with.

10. There are other provisions which for present purposes I need not consider, because there is a significant jurisdictional point that has been taken by the Defendant Secretary of State arising under Section 287(4) of the Act, which subsection (4) states as follows:

"An application under this section must be made within six weeks from the relevant date."

There is no dispute but that the relevant date for the making of such an application was six weeks before 5^th July, but that it expired on 5^th July; in other words, there is a six-week period after making the appropriate calculations in respect of which there is no apparent dispute here, which was 5^th July. So that is six weeks from 24^th May, after making the appropriate allowances. So Mr Eatessami was one day outside the stipulated period.

11. That may seem quite harsh, because in circumstances where there is potentially identified a flaw in a public authority decision, an individual ought to be entitled to challenge it. But on behalf of the Defendant, it has been submitted that this an absolute requirement and not one which is subject to any kind of discretion vested in the court. He asks the court to consider section 287(4) in conjunction with section 284, which says that unless there is compliance with the six-week period stipulated in subsection (4), there can be no questioning in any legal proceedings whatsoever of the validity of the order.
12. To demonstrate how this has worked in practice, Mr Cannock has taken me to several decisions, and in particular the decision of Smith v East Elloe Rural District Council [1956] AC 736, and the judgment of Lord Radcliffe from page 766 and following. In short this was a case which was decided under predecessor provisions, but those of significant parallel to the provisions in the present case, but involving a compulsory purchase order. A very similar situation arose whereby an individual, and that is the claimant or plaintiff in that case, was outside the time limit for challenging the decision to be made in relation to the compulsory purchase order. At page 766, Lord Radcliffe said this in relation to what it was that the complaining party, the aggrieved person, had to challenge:

"I mean that she has to show that in the eyes of the law, this compulsory purchase order was not effective to confer upon the Rural District Council the authority to enter upon her land, which they certainly would not have possessed without the making of the order. It follows therefore that her actions stand or fall by her ability to question this compulsory purchase order in the legal proceedings."

13. This, therefore, begs the more general question as to whether or not an order which on the face of it appears to be valid, but which might have some flaw in it which could be challenged, is nevertheless fundamentally flawed, even if there happens to be an application outside a period that is stipulated within the Act. Lord Radcliffe goes on to make the following pertinent observations at page 768, when dealing with the complaint that was made by the aggrieved party in that case, where the allegations made were of bad faith:

"However that may be, an exercise of power in bad faith does not seem to me to have any special pre-eminence of its own among the causes that make for invalidity. It is one of several instances of abuse of power, and it may or may not be involved in several of the recognised grounds that I have mentioned. Indeed, I think it plain that courts have often been content to allow such circumstances, if established, speak for themselves rather than to press the issue to a finding that the group of persons responsible for the exercise of the power have actually proceeded in bad faith."

14. That was, as I say, Lord Radcliffe dealing with the substance of the complaint that was made by the aggrieved party, but he went on to say this at the bottom of page 768:

"But even if I did not think that an order could be questioned under paragraph 15 on the ground that it had been exercised in bad faith, and I thought therefore that the statutory code did not allow for an order being questioned on this ground at all, I should still think that paragraph 16 concluded the matter, and that it did not leave to the courts any supervising jurisdiction."

What that means, in simple terms, is this, as it is applied to the facts of this case, that even if there was substance to a complaint that the process involved in the decision of the particular public authority was flawed, nevertheless the validity of that decision would still stand unless challenged in accordance with properly laid down time limits under a particular statutory provision.

15. Unfortunately, in this case, Mr Eatessami has not challenged within the stipulated time period. He is out of time, and on the face of it he faces an absolute time bar to the bringing of these proceedings.
16. Regardless of what I thought about the merits of his challenge, I should say this. His challenge is, in any event, somewhat opaque and difficult to understand. It seems to me that he is probably complaining about the way in which the notices might have been fixed. There appear to have been some County Court proceedings relating to the right of access he had, and it is certainly not clear to me on the papers that I have seen whether this is a public right-of-way which he is contending exists for customers to his property or a private right-of-way which his counsel has said may amount to a ransom strip.
17. Be that as it may, I am impressed by the observation of the court in the case of R v Secretary of State for the Environment ex p Kent and Ors [1998] 3 PLR 17 by Pill J, as he then was, at page 6. It seems to me this observation provides the rationale behind the efficacy of the provision in the Town and Country Planning Act:

"There is an obvious public interest in certainty and finality when planning permissions which attach to the land concerned are granted."

He goes on to say:

"In my judgment, sections 242 and 245 of the 1971 Act do define the time limit for challenging allegedly unfair decisions under section 36 of the Act by way of judicial review."

18. The public interest in this case is one of finality. This court has no discretion to override the time limit that is provided for by section 252. Accordingly, and with some regret, because Mr Eatessami clearly has a concern which he wants to be aired, this court has no jurisdiction, and unfortunately for him the claim must therefore be dismissed.

JUDGE WOOD: Yes, Mr Cannock?

MR CANNOCK: My Lord, there is then an application for our costs. Might I invite your Lordship, because I know it can be contested, to deal with the principle first, and then we can head into the detail. But a claim has been made; it has failed. We are entitled to our costs.

JUDGE WOOD: Yes, and is this your summary assessment?

MR CANNOCK: Yes, does your Lordship have it? It was served last Thursday on the court, but I have just put another one to you learned Associate.

JUDGE WOOD: Yes.

MR CANNOCK: I would like to deal with the principle first. I can, as your Lordship has hopefully read in the witness statement of Nicola Stephens, there has been some negotiations about this, that is why we put the witness statement in, to put this in a proper context, because I anticipate that, I am not sure what is going to be said about the principle, but I know the quantum is going to be questioned, and we thought it appropriate to put the rehearsal as to the deals that have been on the table, as it were.

JUDGE WOOD: I have seen all those, Mr Cannock, yes.

MR CANNOCK: Yes, to see those sums in context. My Lord, I can take you through the chronology of it, but perhaps I can deal with it briefly then without going to the individual emails. Basically, I think at the time that the private rights matter was concluded, Mr Eatessami said "Well, I think I am minded to withdraw this". And the Secretary of State said, "Well, we notified you on 13 September and in correspondence repeatedly thereafter that we will ask for our costs, and we invite you to take legal advice. Our costs currently stand at £2,500" -- again, without going through those emails in detail. Offers were put again at £4,000, and Mr Eatessami has simultaneously, I am mixing my metaphors, dug his heels in and stuck his head in the sand, as a result of which we have been required to come here to have this claim dismissed, and that is why you see the sums that we have. There may be some individual items that could be taken on the documents, but my Lord, can I just say those are the broad strokes. Whilst of course we are publicly funded, that does not, with respect, give litigants the ability to make claims against us with impunity. We all know about public sector problems, and the need for fiscal restraint, and that should apply, with respect, to claims and making applications against the Secretary of State, who then warns them that they will be pursued for costs.

JUDGE WOOD: The usual CPR principles would apply here.

MR CANNOCK: Yes.

JUDGE WOOD: So you are the successful party, and therefore the unsuccessful party should meet the costs. Let me hear what Mr Eatessami has to say.

MR CANNOCK: Yes, my Lord.

JUDGE WOOD: Mr Eatessami, you will know, I think Mr Cannock was saying you had the opportunity to --

MR EATESSAMI: Yes, my Lord, I heard that. One question which I put to them a few minutes ago in your absence was that you knew it was out of date; why you kept it going? Why you did not drop me a line that says, "Your action is out of date"? Why you kept it going? If you are coming in here, all your argument today was out of date, not producing any evidence supporting that (inaudible) they did a good job. All your argument in here today was, "He is out of date". Now, if you knew from the first day it is out of date, why you kept it going?

JUDGE WOOD: Let me just look at the statement, was it Nagla Stephens, Mr Cannock, that dealt with the history of the negotiation?

MR CANNOCK: It is, my Lord, that was the --

JUDGE WOOD: Yes. One of the complaints that had been made, Mr Eatessami, was that you had not supplied any documents in the case. You had been required to by HHJ Pelling, who dealt with this I think on the papers, to produce evidence to comply with his order, and you have not done. And that meant that the defendants really were not in a position to address how they were going to challenge the case, because Ms Nagla Stephens says that the defendant had not been served with any evidence by 24 October.

MR EATESSAMI: My Lord, the application I put is dated --

JUDGE WOOD: Sorry?

MR EATESSAMI: The application which they received, initially the claim I put is dated on the 6^th, so they know by fact it is one day out.

JUDGE WOOD: So what you are saying is that --

MR EATESSAMI: They knew that it was out.

JUDGE WOOD: You are saying that this could have been just cut off at a much earlier stage.

MR EATESSAMI: Just cut off, that says do not go any further because you are out of date.

JUDGE WOOD: If the defendant had said, "You have got no case", then you could have gone to somebody and sought some advice. When did you first know that they were making this argument about the jurisdictional point?

MR EATESSAMI: I am sorry, I do not --

JUDGE WOOD: When did you first know that they were going to be arguing your case was time-barred?

MR EATESSAMI: I do not have an exact date, but what it was is, initially when I sent everything, I was contacted via email by Ms Stephenson saying that they have received the bundle, and they are asking me to deal with it.

JUDGE WOOD: Right.

MR EATESSAMI: At that time, I had Dr Kumar in the County Court, trying to stop him blocking our way to get to our unit. After that, Mr Kumar had come to his senses that he cannot do anything with no right-of-way, that is when he started talking to me. At that stage, I send the email to Ms Stephenson telling Ms Stephenson that we are negotiating, and if we come to things, that we do not need to take this action.

JUDGE WOOD: So Ms Stephens is saying that -- you said that you would withdraw your claim, and then they said they want £2,500 of costs.

MR EATESSAMI: It is correct, at that stage --

JUDGE WOOD: And you said, "No, well I will go ahead with the claim then"?

MR EATESSAMI: No, at that stage, I had consulted my solicitor about the costs, because I said nothing has been done yet, we have not done much --

JUDGE WOOD: Yes.

MR EATESSAMI: It appears to be £2,500, too much.

JUDGE WOOD: Yes.

MR EATESSAMI: I made a counter-offer of paying £1,500.

JUDGE WOOD: Okay.

MR EATESSAMI: And the next one I had from her was £4,000.

JUDGE WOOD: And you have seen the current --

MR EATESSAMI: Yes.

JUDGE WOOD: It is nearly £9,000.

MR EATESSAMI: Yes, I mean what is the necessity for her to sit in here and listen to the case and charge £550? Why she is not even (inaudible)?

JUDGE WOOD: Let me just have a word with Mr Cannock. Mr Cannock, there is some merit in what Mr Eatessami is saying, that really this is a robust argument that you have put up, and that any competent solicitor, if he had taken your skeleton argument to them let us say four or five weeks ago, or when the claim was first within their knowledge, that is the defendant's knowledge, they could have advised him that his case was hopeless.

MR CANNOCK: Yes, I think that is a fair point, my Lord.

JUDGE WOOD: Yes.

MR CANNOCK: Firstly, I do not think that goes to the principle.

JUDGE WOOD: No, of course not.

MR CANNOCK: It goes then to the detail.

JUDGE WOOD: Yes.

MR CANNOCK: But my Lord, what one has to do though, of course, is to see that in the proper context.

JUDGE WOOD: Yes.

MR CANNOCK: A claim is made; the claim is made with no documentation whatsoever.

JUDGE WOOD: Yes.

MR CANNOCK: So the first thing that the defendant Secretary of State has to do is to go to the client department and to go to the local planning authority to find out the procedural background in terms of the planning permissions, and then to go back in terms of the documents in terms of the stopping up. And what I am instructed from my instructing solicitor is dealing with lay clients, and potentially an internal Department of Transport solicitor, and also the relevant case officers. All of that takes time, and to get all the documents together. And what my instructing solicitor then does is, having found out what the relevant date is, then writes an internal advice. And it is at that stage, yes, we knew that there was this jurisdiction point, at that stage however, I think we are in November by the time that work has been undertaken. And I would like to be firm, my Lord, that is not our fault.

JUDGE WOOD: No, no, of course not.

MR CANNOCK: If it had been done properly, dare I say it, then we would have had that documentation and the matter would have been easily addressed. The papers then come before me to advise on the jurisdictional point, and I say yes, I think it is a good point. How should we address it? Let us speak to the other side. In fairness to the claimant, he only knows when he receives my skeleton argument exactly the way in which we put this jurisdictional point. But my Lord, that does not get over the point that is why at that stage, we put a counter-offer of £4,000 in respect of our costs, which in my respectful submission, if you were met with it is £4,000 simply to deal with this jurisdictional issue, with respect no court could conceivable argue that that is an appropriate amount of costs in a claim where we have had to do all the investigations ourselves. What has then happened from that day to this is simply -- and as I say, it is a good point for the claimant so far. The claimant, of course, did not read our skeleton argument and then say, okay, I will seek my independent legal advice.

JUDGE WOOD: When was your skeleton argument sent to him?

MR CANNOCK: I think it was –

MR EATESSAMI: Three days ago.

MR CANNOCK: Well, I certainly sent it to my instructing solicitors on Friday. I think it was then served.

JUDGE WOOD: But Mr Eatessami has been a little bit like a rabbit caught in headlights in this case.

MR CANNOCK: Yes, I have some sympathy for that, my Lord.

JUDGE WOOD: If I am concerned that perhaps this case need not have gone as far as it has done, I can reflect that in the exercise of my discretion in respect of the quantum of costs, as well as the principle, can I not?

MR CANNOCK: Yes, my Lord, I am going to invite you to take a broad brush approach to these.

JUDGE WOOD: That is correct, yes.

MR CANNOCK: And I know that those instructing me are content with that. But equally, my Lord, I do not think I would be putting my instructions properly or fairly, or defending, dare I say, the taxpayer, if I was not to say that it is with some reluctance, and having looked at the correspondence you will see, despite our best endeavours to compromise this claim fairly and for a reasonable amount of money, points that are taken in correspondence, and which of course may form the background to any broad assessment of proportionality is a concern by Mr Eatessami. He would not pay the £2,500 because he did not have enough money. With respect, my Lord, we have no evidence to support that proposition at all. The only evidence we have is that he got £450,000 for the transfer of the land.

JUDGE WOOD: I am not concerned with affordability at this point.

MR CANNOCK: I am grateful.

JUDGE WOOD: Obviously, proportionality looms large here, and I have to say, as I look down this bill of costs, this summary of costs, although I can understand your concern that you need to protect the position of the taxpayer, it does seem to me, in view of the very, very narrow basis upon which the matter has been dealt with, that it is a substantial sum of money involved.

MR CANNOCK: My Lord, might I briefly go through some of those items that I suspect your Lordship will be concerned with, and at least give you the benefit of my instructions on this, so your Lordship can form a view?

JUDGE WOOD: Yes.

MR CANNOCK: I suspect the first one is why there are two file handlers? The answer to that is that Mr Howard is the Line Manager who has to check the advice of my instructing solicitor. The first issue then is 14.8 hours attendances on client. My Lord, I have gone through that. There was no evidence; we had to start ab initio all of our investigations on documents. Several people involved, as I have said, the caseworkers in Newcastle, their internal legal advisors. Also, there has then been a large amount of correspondence regarding the compromise of his claim. So that explains that 14.8 hours.

JUDGE WOOD: Mm-hmm.

MR CANNOCK: The next issue that your Lordship may have your eye drawn to is attendances on opponents, 2.4 hours. My Lord, actually that, if one works it out the way that it is done, that one email if it is under six minutes is charged at six minutes' time. So that is potentially 28 emails, and my Lord, you will have (inaudible) some of the emails as to the content of them, and whether they advanced matters. Attendance on others, three hours, the other are the court, and you will have seen some of the correspondence; of course, the second defendant and the second defendant's solicitors, and that is regarding the application to adjourn but also then some of the correspondence about chasing the claimant as to what he was going to do. Work then done on documents, my Lord I am instructed in fact that the 3.4 hours at £200 per hour should just simply be struck out.

JUDGE WOOD: Which one, sorry?

MR CANNOCK: So that is at the top of page two. So that leaves 10.9 hours work done on documents. I am instructed that having got all the documents together, my instructing solicitors spent six hours writing an internal advice on the jurisdictional point but also on the merits.

JUDGE WOOD: Then that makes the total, does it not, of getting the documents together and also working on them, in excess of 25 hours.

MR CANNOCK: Attendance at hearing, that is a discrete point that is taken.

JUDGE WOOD: Yes.

MR CANNOCK: My Lord, I am going to invite you to take a view. The Secretary of State considers that it is appropriate that the Department of Transport is always represented at these kind of hearings, and there is, as I understand, is a service level agreement which requires it.

JUDGE WOOD: Yes. No disrespect to those sitting behind you, and of course one considers the overheads, your fee is more modest than your instructing solicitor's fee.

MR CANNOCK: I know that my instructing solicitor has heard that.

JUDGE WOOD: I am sure you will get another brief out of this, Mr Cannock.

MR CANNOCK: One tries.

JUDGE WOOD: I am going to take a broad brush, unless you want to address me further?

MR CANNOCK: Thank you, my Lord.

JUDGE WOOD:

19. Thank you. I accept the principle that the defendant has lost. I am sympathetic to him, but perhaps if he had applied some greater consideration a little bit earlier, then all these costs or a substantial amount of these costs could be avoided, but nevertheless I am satisfied from the history that it has only been late in the day that the defendant has been able to address these points. I think the broad brush that I take really knocks some of the attendances on the client down; it eliminates, with respect, the attendance of the solicitor today; and it significantly reduces the work on the documents. That broad brush would produce a figure of £5,750 by way of costs, and that is the sum that I assess accordingly.

JUDGE WOOD: Is there any further order that you require me to make, Mr Cannock?

MR CANNOCK: No, thank you, my Lord.

JUDGE WOOD: Thank you very much, indeed. That judgment was given extempore, so to speak, after a little bit of thought. Obviously, in the ordinary course of the ways, I will seek when it is passed to me for my approval to modify. I will not be adding to it significantly, but to modify it and correct it, as the case may be.