R. v. LB Bromley exp Diane Barker

Transcript date:

Friday, February 22, 2002

Matter:

Court:

High Court

Judgement type:

Permission

Judge(s):

Stanley Burnton J

CO/1290/01

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

The Royal Courts of Justice

The Strand

London

Friday 22 February 2002

Before:

MR JUSTICE STANLEY BURNTON

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THE QUEEN on the application of

DIANE BARKER

- v -

LONDON BOROUGH OF BROMLEY

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Transcript prepared from the Stenograph notes of

Smith Bernal Reporting Ltd

190 Fleet Street London EC4A 2AG

Tel: 0207 414 1400

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MR J PEREIRA (instructed by Richard Buxton, 40 Clarendon Street, Cambridge) appeared on behalf of the Claimant

MR T STRAKER QC and Mr J STRACHAN (instructed by the London Borough of Bromley Legal Department) appeared on behalf of the Defendant

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PROCEEDINGS

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Friday 22 February 2002

1. MR PERIERA: My Lord, I appear on behalf of the claimant. My learned friends Mr Straker and Mr Strachan appear on behalf of the defendants. Your Lordship should have an A4 lever arch bundle, two short skeletons -- one from each party -- a witness statement from Miss Susan Ring in behalf of the claimant, and it might be useful at some point, although I myself do not intend to take your Lordship to it, to have a copy of the transcript of the Court of Appeal's judgment in the related proceedings, of which your Lordship may be aware. I have a spare copy here that perhaps I can hand up.

2. MR JUSTICE STANLEY BURNTON: Right, skeletons I have; and there is a witness statement you referred to.

3. MR PERIERA: I am told that should be at the back of your file, my Lord, at page 345. I assume it was inserted at some later date.

4. MR JUSTICE STANLEY BURNTON: Susan Ring?

5. MR PERIERA: That is correct, yes.

6. MR JUSTICE STANLEY BURNTON: Before we go any further, let me mention this. I have been warned -- I have been told -- that there is a very urgent application for an injunction which I may have to consider, initially on the papers. So at any moment someone may walk through the door with a set of papers. I shall either look at them in court or adjourn for a short while. I hope it will not disrupt matters too much.

7. MR PERIERA: My Lord, I hope I can take this matter quite shortly. As you have seen from the skeleton, we are asking simply for an adjournment of the permission decision for the reasons set out there. The key point is this. There have, as your Lordship may be aware, been these related proceedings in this case.

8. MR JUSTICE STANLEY BURNTON: I have read the skeletons. You say I ;should adjourn this to await the decision of the House of Lords.

9. MR PERIERA: My Lord, yes. Because if this application is dismissed, inevitably, in order to protect our position it is likely that the claimant will renew before the Court of Appeal.

10. MR JUSTICE STANLEY BURNTON: It seems that I am bound by the Court of Appeal's decision, am I not, at the moment?

11. MR PERIERA: In terms of the merits, your Lordship is, yes. Were there to be a decision on the merits of this case we accept that your Lordship should properly dismiss the permission application. We do not press before your Lordship the merits. All we seek is that your Lordship exercise his discretion in terms of case management, or however one will, simply to adjourn the matter until the House of Lords has made a ruling. The court will then be in a proper position to know what the merits are.

12. MR JUSTICE STANLEY BURNTON: What do you say on the question of delay?

13. MR PERIERA: My Lord, there are, we accept, issues of delay.

14. MR JUSTICE STANLEY BURNTON: At the moment, to be brutally frank, it looks fairly straightforward, as it did to Mr Justice Moses.

15. MR PERIERA: My Lord, yes, that is right, but there are two points that can be made about that. Firstly, the issue of merits, in my submission, must be relevant to delay because one cannot sensibly see it would be proper to dismiss an application on grounds of delay without at all considering the merits. So one way or another the court has to consider the merits if it is to dismiss on the grounds of delay. But, to be frank, were the court to dismiss the application, the court could dismiss it on grounds of the merits as equally well as it could on grounds of delay.

16. MR JUSTICE STANLEY BURNTON: If I consider this I have to dismiss it. That is conceded.

17. MR PERIERA: My Lord, that is right. So all we say is that it should be adjourned, because the merits are inextricably linked with what is before the House of Lords at the moment and it does not serve anyone -- it does not serve justice, it does not serve my clients or indeed the defendants -- if these proceedings are to linger on, with further applications being made and so forth, simply because we are protecting our position pending the outcome of the House of Lords' decision. When that decision is made, a sensible decision can then be made in relation to the progress of these proceedings, because we will know definitively what the merits of this application are. My Lord, you will see there are a number of points made.

18. MR JUSTICE STANLEY BURNTON: Another point that is made against you, as I understand it, is that if you succeed in the House of Lords -- the House of Lords give leave and you succeed -- then this permission goes down with the outline permission. So why do you need these proceedings at all? That is my understanding at the moment.

19. MR PERIERA: My Lord, it is said that these proceedings serve no purpose. Our concern is --

20. MR JUSTICE STANLEY BURNTON: That is what they mean by that, as I understand it.

21. MR PERIERA: Yes, that is right. Our concern is that there are in law two separate decisions. There is the earlier approval of the details, which is the subject of the proceedings before the House of Lords; there is this later approval which related to landscaping and other matters. Those are in law two separate decisions. It is not inconceivable that even if the first decision is quashed when it comes back for redetermination, the council or an interested developer may say, "Hang on. That redetermination has to be made in the context of your approval of landscaping and other matters, which has not been challenged or is not challenged, and one must take that as a given." What we are concerned about is that, as it were, the outcome of the first proceedings, if we are successful, should not then be placed in some kind of straitjacket because there has been this later determination which sets certain matters in stone and limits the parameters of then what the defendant may consider, if the House of Lords proceedings are successful. We are keen to ensure, as should properly happen, that the whole of the reserved matters, of the details, are considered if there is a determination. That should not be complicated by the parties saying, " Actually, no, there are these matters subsequently approved -- landscaping and so forth -- which have been approved, and that decision still stands. It is formally valid," and so forth. There has never been a formal concession on the part of the defendants that if we are successful in the first proceedings they will reconsider all of the details that they have approved, including those which are the subject of this challenge. They have not said that. They have said, "It all looks to be academic, does it not, because it stands and falls in the further proceedings." But there has been no formal concession to that effect. If we were to get one, then of course we would then reconsider whether these proceedings were necessary.

22. MR JUSTICE STANLEY BURNTON: That is it, is it not. Is there anything else you want to say?

23. MR PERIERA: Those are, as it were, my positive submissions. There are a number of points made in reply to Mr Straker, which your Lordship will have seen in the skeleton, but they are probably best dealt with by way of reply formally before you.

24. MR JUSTICE STANLEY BURNTON: That is fine.

25. MR STRAKER: My Lord, can I make three observations. First, that in my respectful submission it is not open to an applicant, so to speak, to pick and choose a date for the conduct of his proceedings against some possible future change in the law, ie to await some potential event in the House of Lords in this case. Secondly, that as far as this matter is concerned, your Lordship is really being asked to decide, not merely that there is a potential argument, but also that there is something potentially worth arguing about. And we say that plainly there is not.

26. MR JUSTICE STANLEY BURNTON: Is that a reference to the last point, that if the earlier decision goes, this decision goes?

27. MR STRAKER: My Lord, it is. My Lord, yes, because when one sees how this whole thing operates, nothing can happen in connection with this decision if the earlier decision has gone because, as your Lordship will readily appreciate, the landscaping which is the subject-matter of this condition is linked inexorably to the matters which find expression in the previous decision.

28. MR JUSTICE STANLEY BURNTON: What was the previous decision about?

29. MR STRAKER: The previous decision was about the siting of the building, the means of appearance of the building, the means of access to the building.

30. MR JUSTICE STANLEY BURNTON: So this is landscaping around the building?

31. MR STRAKER: Absolutely so, my Lord. If your Lordship, for example, looks at E10 of the bundle.

32. MR JUSTICE STANLEY BURNTON: Yes.

33. MR STRAKER: Your Lordship sees that this is the decision under attack, but it is subject to certain conditions itself.

"Samples of the materials for the following have to be submitted to and approved in writing by the Local Planning Authority before the relevant part of the work commences -

the external faces of the building

the road surfaces

the brick on edge details of the new railings ..."

and so forth.

34. So that if the previous exercise has gone, the link that here finds expression also goes. So that is why we say there is nothing potentially to argue about, because if we are unsuccessful in the response to the petition, or the House of Lords overturn the Court of Appeal and the whole thing goes, then the whole pack of cards collapses. That is really the long and the short of that particular matter.

35. MR JUSTICE STANLEY BURNTON: Yes.

36. MR STRAKER: My Lord, as far as delay is concerned --

37. MR JUSTICE STANLEY BURNTON: I have read the letter attached to your skeleton and I have already expressed a view.

38. MR STRAKER: I am much obliged. The summary grounds.

39. MR JUSTICE STANLEY BURNTON: Yes.

40. MR STRAKER: I say no more. As Mr Justice Moses said, it seemed incredible that the position was of that character. Your Lordship will be alive to, no doubt, what appears in the guide as far as the Administrative Court is concerned, namely that in the Notes for Guidance --

41. MR JUSTICE STANLEY BURNTON: What are we looking at?

42. MR STRAKER: I am looking at the Administrative Court Notes for Guidance which I have in the Civil Court Practice. They simply record, my Lord, that the court can extend the time, but the only exercise of that power is where satisfied that there are very good reasons for doing so. My Lord, I do not in those circumstances take up further time in elaborating those three matters which underlie our resistance to it.

43. MR JUSTICE STANLEY BURNTON: Just remind me what your first one was?

44. MR STRAKER: My first one was the pick and choose. One cannot simply say to the court, having launched proceedings, "I do not much like the state of the law at the time I seek to initiate my proceedings. I would like to hang on, please, against the possibility that there might be a change."

45. MR JUSTICE STANLEY BURNTON: Well, one does that from time to time, particularly picking in this court, when you have test cases going before the Court of Appeal. We also adjourn other cases simply because it is a waste of time to hear them.

46. MR STRAKER: The generality, put in that rather crude way my me, is nonetheless something which is capable, I would trust, of finding expression.

47. MR JUSTICE STANLEY BURNTON: Since the court requires a litigant to start his proceedings as soon as possible, he is not in a position to pick and choose. He has to start.

48. MR STRAKER: Absolutely.

49. MR JUSTICE STANLEY BURNTON: There we are.

50. MR STRAKER: My Lord, I am much obliged.

51. MR JUSTICE STANLEY BURNTON: Mr Periera.

52. MR PERIERA: My Lord, just to put matters quite shortly, this is not like those cases where there are test cases going ahead.

53. MR JUSTICE STANLEY BURNTON: Not at all, this is a single case turning on individual facts.

54. MR PERIERA: It is, and those same facts, those same issues are before the House of Lords as a direct nexus between the two sets of proceedings. So it is a quite a strange position to be in and it is quite a unique position to be in. The question which I suggest is for your Lordship is what purpose is to be served by dismissing this application.

55. MR JUSTICE STANLEY BURNTON: Suppose you had a meritorious claim. What grounds are there for extending your time?

56. MR PERIERA: Well, my Lord, that is set out in the claim form. The simple point that is being made is that we were not aware that the decision had been made. My solicitors were not aware that the decision had been made. One appreciates --

57. MR JUSTICE STANLEY BURNTON: By definition your client is an interested party, and I have seen the amount of publicity given to these decisions is tremendous.

58. MR PERIERA: My Lord, that is right, and I cannot ignore that that is the case. But one has to see that in the whole of the context of the case. This was a decision taken by the council in respect of reserved matters, when their earlier decision, which my learned friend now quite frankly accepts was subject to challenge in ways which, if successful, affected the decision which they had chosen to take. We were quite surprised that they had taken that decision. It is right that we were not aware of that.

59. MR JUSTICE STANLEY BURNTON: Who is the "we" here -- your solicitor?

60. MR PERIERA: My client and my solicitors.

61. MR JUSTICE STANLEY BURNTON: Is your client part of an action group?

62. MR PERIERA: No, my client is not part of an action group, despite attempts at various times for it to be suggested otherwise. She is not, no.

63. MR JUSTICE STANLEY BURNTON: She is unconnected with----

64. MR PERIERA: There is a Crystal Palace campaign that is mentioned and she is not a part of that. That was a matter that was alleged at first instance in the earlier proceedings and never established. My Lord, one has to see it in the totality of the context of the case. Were the merits to be overwhelming, were the House of Lords to uphold the decision and then the substantive application, that would be a weighty factor suggesting that an extension of time should be granted -- that added on to the concession by my learned friend that in fact it is the main proceedings which are key and therefore there cannot seriously be suggested to be any prejudice and so forth from the delay in this application. So it would be a case where the merits were overwhelming, if the House of Lords application was successful, and there was no prejudice. In those circumstances, one could see that there would be good reason for extending time. My Lord, to get back to the question, I do say: what purpose is served by dismissing this application? Not a great deal, because it is likely that it would be renewed. What purpose is served by adjourning it? There is a sensible purpose.

65. MR JUSTICE STANLEY BURNTON: You could not renew if I dismiss. You would have to seek permission to appeal from the Court of Appeal or from me.

66. MR PERIERA: My Lord, my understanding is that we renew the application before the Court of Appeal.

67. MR JUSTICE STANLEY BURNTON: I think you have to appeal my refusal.

68. MR PERIERA: Then, my Lord, by whatever means, it is likely that the proceedings would be taken that step further to ask the Court of Appeal to grant us that permission against your decision. So, one way or another, it is likely that the proceedings will go on from here -- if they are dismissed. If they are not dismissed, then a sensible view can be taken in the light of what the House of Lords has to say on the petition. That is not an unreasonable request to make. It does in my submission add to efficiency and save resources and so forth. So it does seem to us to be a sensible course to take. But we accept what is said about the merits of the case.

69. MR JUSTICE STANLEY BURNTON: Thank you very much.