England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/05/2015

Mrs Justice Patterson:

1. After the decision in the case was handed down on 5 May 2015 ([2015] EWHC 1261 (Admin)) I invited submissions as to the Order and costs. All parties made further submissions.
2. The second, third and fourth defendants made representations that a declaration should be made instead of a quashing Order. They argued that the case was abnormal for eight reasons. They were:

i) The differences between the matters which the examining inspector took into account and the matters which the section 78 inspector took into account were very slim;

ii) Whilst there was a material consideration which had not been taken into account the extent to which the position might be changed in light of the slim differences was very limited. That factor needed to go into the balance when deciding the appropriate remedy;

iii) The section 78 appeal proceeded on the basis of an express concession. That was that there was a shortfall in the five year housing land supply which was enshrined in the statement of common ground;

iv) At no time did the claimant resile from that concession;

v) The claimant failed to explain itself clearly to the first defendant;

vi) The claimant's grounds and first skeleton argument did not articulate the materiality of the examining inspector's report;

vii) The claimant failed to put the second to fourth defendants on notice of its communications with the PINS case officer;

viii) As a result the second to fourth defendants risk being sent back to an inquiry which would be completely different to that which it went to at the outset namely with a different Development Plan and different housing situation.

3. In those most unusual circumstances the second to fourth defendants submitted that the fair and proportionate response would be to acknowledge the unlawfulness by way of declaration. To quash would be disproportionate, unjustly reward the planning authority and would severely prejudice the second to fourth defendants.
4. The claimant submits that no submissions were made at the hearing that a declaration should be the appropriate remedy in the event that an error of law was established.
5. Without prejudice to that the claimant makes the following submissions in relation to the points raised by the second to fourth defendants:

i) Those were all matters that were taken into account in the hearing;

ii) Having found that the section 78 inspector failed to take into account a matter which should be placed in the scales, a Judge in the Planning Court should not seek to speculate as to what weight an inspector considering the planning merits might place on the matter;

iii) As to (iii) to (viii) that is contentions it would be unfair to place the second to fourth defendants back at an arena in which the planning merits are again live. That is founded on the mistaken assumption that a section 78 appeal is purely a private dispute between the developer and planning authority when in fact there is a strong public interest in the outcome of planning appeals.

iv) As to (vii) the claimant acted entirely properly and in accordance with PINS procedural guidance.

v) As to (iv) the suggestion that the onus was on the claimant to resile from its concession in the statement of common ground at the time it alerted PINS to the change in circumstances was misconceived. The time to do that (if advised) was in its later "opportunity to comment".

6. The first defendant did not make substantive submissions on the issue of a declaration but said "Should the court consider further to submissions of the second, third and fourth defendants that a declaratory order should be made instead, that will of course be accepted and no representation is made as to this."

Discussion and Conclusions

7. No argument was raised at the hearing that a declaration would be an appropriate was of proceeding if an error of law was found. As it has been raised and all parties have dealt with it, so do I. I can do so as the argument is not about whether relief should be granted but about its nature and whether a declaration is appropriate as an alternative to quashing the decision letter.
8. It is clear from my judgment of 5 May 2015 that the facts of the case were unusual. The error of law arose because of a failure on the part of the first defendants.
9. It is clear from paragraphs 68 and 74 of the judgement that the second to fourth defendants were placed at a disadvantage as a result of the error on the part of the first defendant when that error was not of their making and to which they had not contributed. Issues of fairness, therefore, arose. Fairness though was a two-way process of which the second to fourth defendants were an unwitting victim of whatever flaw there was in the first defendant's systems that operated in the case.
10. In relation to the points made by the second to fourth defendants I am not persuaded by the first, fifth, sixth or seventh points raised. The first point is dealt with in the judgment itself. The fifth and seventh points are of no substance as the claimant was following the advice of PINS in submitting the examining inspector's report to the case officer. It may be that part of that advice could be amended in the interest of transparency and fairness to all parties but the fact is that the claimant was acting entirely properly at the material time. Having said that, as I said in paragraph 65 of the judgment of 5 May 2015, it would have been better if the claimant had made its position clearer in its emails of 3 and 9 December 2014.
11. In all of the circumstances, and taking the position of all of the parties into account, evaluating the remaining points raised by the second to fourth defendants against any prejudice to the claimant, in my judgment, it is appropriate, in the exceptional circumstances of this case, to grant a declaration in the terms agreed by the parties as to the unlawfulness that occurred.
12. That approach recognises the public interest, that the first defendant acted unlawfully, that the claimant acted in an appropriate way but that the second and fourth defendants, through no fault on their part, have found themselves disadvantaged. I find that although the decision in invalid in the exceptional circumstances here it is appropriate to exercise my discretion and grant the alternative form of relief, namely a declaration.