IN THE SUPREME COURT OF JUDICATURE C/00/2609
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT LIST)
(MR JUSTICE HOOPER)
Royal Courts of Justice
London WC2A 2LL
Monday 27 November 2000
B e f o r e:
LORD JUSTICE SEDLEY
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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
T H E Q U E E N
On the Application of
ST EDMUNDSBURY BOROUGH COUNCIL
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR D WOLFE (Instructed by Messrs Richard Buxton, Cambridge, CB1 1JX) appeared on behalf of the Applicant.
MR R W HUMPHREYS (Instructed by Legal Services, Borough Offices, Suffolk,IP33 1XB) appeared on behalf of the Respondent
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J U D G M E N T
(As approved by the Court)
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1. LORD JUSTICE SEDLEY: On 11 and 12 April 2000 Hooper J heard argument in the challenge brought by Mr Davidson, a local resident, speaking for himself and other local residents against the decision of St Edmundsbury Borough Council to grant planning permission for a multi-screen cinema in Parkway, Bury St Edmunds. He gave judgment on 21 June dismissing the application.
2. There were two main grounds adumbrated in the challenge. The first was that the decision makers, the Planning Committee, and in particular its chairman, Mrs Warwick, were improperly influenced by the fact that the council, as landowner, was going to make nearly £1.5m out of any development on Parkway. That suggestion was not pursued at the hearing because it was testified to as "a strong suspicion" and refuted. It was firmly denied by Mrs Warwick with the result that there was insufficient evidence to pursue it.
3. The second principal ground was that the decision to grant planning permission was itself contaminated (expressing this in my words) the policy and resources considerations which were placed before the councillors who were charged with taking the planning decision. It was said that these were not adequately put in context, with the result that they may well have been swayed by the money considerations and, most particularly, by the threat that the deal would go off unless the Parkway project was given planning permission without waiting to see if the Cattle Market site was, as was anticipated by many, a viable proposition. The Cattle Market too was owned by the local authority, so it was not going to represent a dead loss in terms of resources.
4. Hooper J, having heard the second of these arguments, rejected it. Against it, in two separate grounds spelt out in his grounds of appeal, Mr David Wolfe seeks permission to appeal. I will not rehearse the grounds but they are, in summary, that the judge erred in law in reaching his conclusion that nothing had gone wrong in the latter regard in that there was no evidence before him upon which an evaluation could be made as to the weight attached by the members of the Planning Committee to the assertions of the operator of the proposed multi-screen cinema.
5. Both issues (the one which was adumbrated and not argued and the one that was argued and failed) took for granted, as happens in local Government cases, something which for better or for worse is part of our system; many people think for worse. First, the same local authority may be both landowner and planning authority and therefore capable, corporately, of authorising itself to make a great deal of money. Secondly, there appears to be no prohibition on individual councillors serving on both major committees, the Planning Committee which is responsible, as its name suggests, purely for planning permission on planning criteria, and the Policy and Resources Committee which is concerned with the maximising and good management of council revenues. In the present case this is exactly what happened.
6. Mrs Warwick was, and probably still is, the chairman of Planning and vice-chairman of Policy and Resources. The division of thinking which this requires is remarkable, but perhaps no more remarkable than that which judges regularly demand of juries when they are told to ignore the evidence against one defendant when considering the case against another. It is a fact of life and none of it, understandably, is attacked in the present proceedings. Whether it is open to attack in this or another case, I do not need to consider.
7. The decision of Hooper J on the point that he did decide is in my judgment not open to challenge. Certainly, the critique that Mr Wolfe has persuasively advanced does not have any real prospect of success. It is perfectly true, as he says, that among the data before the Planning Committee when it took its decision was the report to the Policy and Resources Committee. The Policy and Resources Committee, quite clearly principally concerned with the financial implications of the project, had a section headed "Planning Context". It was arguably material for the Planning Committee to see what the Policy and Resources Committee had concluded, albeit for its own planning purposes.
8. It would take probably half an hour to read out all the passages of prose from the various reports that go one way or the other to the commercial side of the planning issue, but I record simply that before Hooper J were not only the passages of the officers' report (page 123 of the bundle from which he quotes in paragraph 29 of the judgment), but the rest of that report at some length, including passages which have been drawn to my attention at page 134, indicating that there had been market testing which had thrown up at least 16 other potential developers. There was also a passage quoted in Mr Wolfe's skeleton argument at paragraph 31 which sets out the developers' agent's letter suggesting that time was running out. That was the foundation for the suggestion that the council had had pistols put to their heads.
9. For the council, Mr Humphreys has reminded me that the officers' report also drew attention to the need for sequential reasoning in the way that is familiar to planners. Mr Humphreys also says that councillors were warned in an appendix to the report that commercial developers might have their own reasons for suggesting that the matter was urgent, which was not necessarily a sound guide to the planning issues or sound reason for taking the decision in haste.
10. All these matters before the Committee, and indeed before Hooper J, were quite sufficient in my judgment to give the Planning Committee the material it required to point it in the direction it was required to take before coming to its own decision.
11. I turn to the other challenge which, in my judgment, arises only now for good reasons set out by Mr Wolfe. It appears from a fresh statement now made by Councillor Lockwood, a councillor who has been the principal source of internal evidence on behalf of the applicant, that, literally on the eve of the hearing, Mrs Warwick had said at a Conservative group meeting (and I stress that it was there and not at a committee meeting) that the council could not afford to lose the £1.4m involved in the Parkway cinema development. This could have been, but was not, raised before Hooper J, but I am prepared to accept as realistic Mr Wolfe's assurance that, far from his client being a stalking horse for Councillor Lockwood (this is local residents' litigation), there was no particular reason why material arising at such a late stage should have come directly to the hands of the applicant's counsel for use at the hearing. Mr Humphreys has told me that Mr Lockwood was present throughout, but I do not think I should proceed on evidence from the Bar, although it is given on instructions.
12. I accept that this is material which there was at least a decent excuse for not using at the time. It is material which, according to Mr Lockwood's recent statement, was confirmed when at the group meeting on 18 September he confronted Mrs Warwick. He says that she accepted what he had said about it. Mrs Warwick, however, says in response (and I am treating both of them as statements which would be deposed to and sworn if this matter goes forward) that she has no recollection of saying that which Mr Lockwood attributes to her at the group meeting. She accepts that on occasions she has said that payment would be welcome. She continues to insist that, while that will have been in her mind as a councillor and Conservative group member, it was put squarely out of her mind, along with other policy resources matters, when she chaired the Planning Committee. Indeed, she goes on to say that it was Councillor Lockwood who persistently raised this matter and not her. She also says that she did not in any sense effectively confirm in September that financial considerations were taken into account in the final decision (because Councillor Lockwood says that he had put to her and she had not denied in September what she had said in April).
13. So the question comes down to this. Given the admitted importance to Mrs Warwick as a councillor of the potential gain of nearly £1.5m to the council, can she be believed when she says she put it out of her mind as chairman of the Planning Committee?It seems to me that this is something which the law assumes, and which the evidence as it stood before Hooper J did not enable the applicant at that stage responsibly and fairly to accept. The suspicion was not pursued because the evidence was not able to be taken any further. Nor, it seems to me, is the evidence now there to take it any further.
14. Once again we have the confirmation from Mr Lockwood, and the admission from Mrs Warwick, that this money was important in her mind to the council; and any denial of it would hardly have been believable. We also have the assertion that she did what the law requires of her, which was to put it out of her mind when she sat as chairman of planning. There is no evidence even now to refute that.
15. One has to say that, surprising though it may be in any human being to be able to divide their mind in this way, it is something the law expects and assumes. For that reason I do not propose to give permission to appeal on the second ground any more than on the first. It is on the substantive evidence rather than any of the Ladd v Marshall grounds that I do so. It could not bring about a different decision even assuming that the two deponents were put in the witness box and were cross-examined on their statements.
16. For those reasons, with my appreciation to both counsel for the helpful way they put their submissions, I refuse permission.
Order: Permission to appeal refused. No order as to costs.