R (Botley Parish Action Group) v Eastleigh Borough Council

Transcript date:

Thursday, May 1, 2014



High Court

Judgement type:

Permission renewal


Mrs Justice Lang

Transcript file:

Neutral Citation Number: [2014] EWHC 1982 (Admin)
Royal Courts of Justice 
London WC2A 2LL

Thursday, 1 May 2014

B e f o r e:





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Mr R Buxton (instructed by Richard Buxton) appeared on behalf of the Claimant

Mr B Ash QC (instructed by Clyde & Co) appeared on behalf of the Defendant
Mr Hill QC & Ms P Jackson (instructed by Clyde & Co) appeared on behalf of the Interested Party. 
J U D G M E N T 
(As approved)

Crown copyright©

1. This is a renewed application for permission to apply for judicial review of Eastleigh Borough Council's grant of full planning permission dated 28 November 2013 for a development at Boorley Green, Hampshire. The proposed development comprises some 1400 homes and other facilities.

2. Despite the careful submissions of Mr Buxton, in my judgment this is in truth a challenge to the planning merits of that decision. It does not disclose any arguable grounds for judicial review and no arguable errors of law have been identified in the decision making process.

3. Prematurity is an issue that was relied upon in the first set of grounds and now forms the backdrop to the second set of grounds. Prematurity is a matter of planning judgment to be applied in accordance with planning policy. The Defendant Council here did consider the issue of prematurity in the context of this application and the local planning process. I do not consider that its approach discloses any arguable error of law.

4. At the heart of this claim is the assertion that the Council should have selected an alternative site for development, namely the Allington Lane site. There is no general legal duty to consider alternative sites. This was not in my view one of those exceptional cases in which the planning authority had to consider alternative sites. There were not two rival sites or two rival planning applications nor was this a case in which there was such conspicuous adverse effects from the development that a reasonable planning authority ought to consider an alternative site lacking such drawbacks. Neither the Boorley Green site nor the Allington Lane site could properly be characterised in this way.

5. Article 5 of the EIA directive requires the developer to provide an outline of the main alternatives considered by the developer and the main reasons for his choice. It does not impose an obligation on the planning authority to carry out an assessment of alternative sites or provide reasons for rejecting them; see Sharp v Chelmsford Council [2013] EWHC 4180 (Admin).

6. The obligation upon the planning authority is to take the environmental information and the results of consultation into consideration. Here the evidence shows that the Environmental Statement referred to the Allington Lane site, among 15 other alternative sites. The Council took into consideration the Environmental Statement. The Claimant made detailed submissions arguing in favour of the alternative Allington Lane site which were also taken into account by the Council.

7. Finally the Council met its obligation to provide reasons for its decision on the EIA obligation. It was not required to give reasons in relation to possible alternative sites. The Council was not required to consider the prospective changes to the directive.

8. For these reasons the application for permission is refused.

MRS JUSTICE LANG: Turning to the question of costs, this is an Aarhus claim and therefore there is costs protection. The point made by Mr Buxton is that the protection should be that accorded to an individual rather than to a business or legal person.
MR BUXTON: That is correct, my Lady.
MRS JUSTICE LANG: Mr Hill, do you have any observations on that, or Mr Ash? 
MR ASH: Probably more for me. I do not know to what extent your Ladyship's decision in that respect does incorporate, at least in principle, the costs of the Interested Party. I suspect which ever way it is looked at the Aarhus position is going to absorb the Council's costs or rather not come anywhere near covering the Council's costs and not come near the costs of the Interested Party.
MRS JUSTICE LANG: Is that how it works, you get first refusal? 
MR BUXTON: It is interesting because unless your Ladyship indicated that there should be costs for both parties there. There may need to be some argument about that.
MRS JUSTICE LANG: I perhaps need to see what the size of the pot is.
MR ASH: If I may hand up an extract from the practice direction.
MRS JUSTICE LANG: It seems to me that an unincorporated association, which is what this is, is not a legal entity; that is why claims have to be brought through the representatives, the officers. I am not sure it can count as a legal person.
MR ASH: I think what one has to perhaps consider here is whether where there is not a single Claimant but a variety, a number of Claimants, who say that they are representatives of an unincorporated association, that is what would be described in paragraph B as "all other cases". In other words the mischief being sought to be met is no individual should find themselves vulnerable to more than £5,000 in costs. Now, I do accept that on one view if you decided that you were going to have 50 people representing an unincorporated association, say 1,000 people, you might seek to argue that that may be 50 times £5,000. I would not seek to suggest that. What I do seek to suggest is where you have more than one individual that brings into play item B, which is in all other cases £10,000, because there is more than one individual.
MRS JUSTICE LANG: I see the attraction to that argument but I am not sure that that is what the practice direction says. It does not distinguish between one Claimant and several Claimants, so I don't think numbers alone is a decisive factor. But there is obviously an organisation here not an ad hoc protest group. Obviously there was a lot of consideration before these new Aarhus convention costs rules were introduced and this was probably canvassed in some discussion paper that I have not had a chance to read, has anyone else?
MR ASH: I am not aware myself.
MR ASH: The point I would make as a matter of language is there is not a Claimant here, there are several Claimants, clearly that is not factually the situation here.
MRS JUSTICE LANG: For example if there were two Claimants or three Claimants you would suggest that there could be an order up to £10,000?
MR ASH: I would. That has to be the logic of my position. If there is more than one Claimant the £10,000 rule applies. The most likely thing is that it would either be split up between them so neither of them would be vulnerable to having to pay more than £5,000 in costs or the one who had greater resources might decide to pay more.
MRS JUSTICE LANG: Do you accept that an unincorporated association is not a business or a legal person? 
MR ASH: Yes.
MRS JUSTICE LANG: Okay. What else do you want to say about costs while you are on your feet?
MR ASH: I am not quite sure if your Ladyship has in the already said effectively we are entitled to our costs of the amendment.
MRS JUSTICE LANG: I had said that but obviously it is subject to the cap.
MR ASH: Subject to the cap, yes. I need not say more about the principle is what I am assuming.
MRS JUSTICE LANG: The principle of the amendment.
MR ASH: As to the principle as to whether we should receive an award of costs from the Claimant. That I understand to have already been effectively ordered.
MRS JUSTICE LANG: Yes, what we are trying to do is work out what you are going to get costs for.
MR ASH: I don't have anything to say other than what I have already indicated; in my submission this is a 10,000 limit rather than a 5,000 limit.
MRS JUSTICE LANG: Right. The first question is in terms of the amendment it seems to me tell me if you agree that the costs are those of the preparation of the revised skeleton argument.
MR ASH: Yes.
MRS JUSTICE LANG: So presumably that is not in any schedule because it is so recent.
MR ASH: There is a schedule available, actually.
MRS JUSTICE LANG: I have one which just says "fees for renewal hearing" but that is for the actual hearing. That is a separate issue which I think you also wish to claim for. We don't have the fees for the revised skeleton, do we?
MR ASH: I don't have the document in front of me for the moment. There is a global amount for the fees for the renewal hearing.
MRS JUSTICE LANG: That is the £7,500, for the hearing as well.
MR ASH: Yes. 
MRS JUSTICE LANG: Do address me on that if you wish to now. Obviously normally costs are confined to the acknowledgement of service.
MR ASH: That is dealt with in my skeleton argument on the basis of the Mount Cooke case.
MR ASH: What I have said there essentially is that this is plainly a case where the circumstances were exceptional. I need not perhaps trouble as much now in view of the fact that the amendment has been allowed about the delay point and the abuse of process point but in effect what has been decided is that the case as originally pleaded was unarguable and that has of itself required further expenditure to be incurred by the Defendant on restarting the process all over again in relation to the new basis for the claim. That is what I would rely upon as the exceptional circumstances. What we don't have 
MRS JUSTICE LANG: Cranston J ordered the Claimant to pay £5,250 towards the costs of the preparation of the acknowledgement of service.
MR ASH: Yes.
MRS JUSTICE LANG: That was obviously on the first set of grounds so presumably that was the figure that had been submitted by you in the acknowledgement of service?
MR ASH: I suspect so. I was not directly involved at that stage but I assume that that was the case.
MRS JUSTICE LANG: Usually it is included in the last paragraph.
MR ASH: I am told that what was actually submitted was a larger sum of the order of £8,000.
MRS JUSTICE LANG: Really? That was a summary assessment.
MR ASH: Some sort of discounting against that.
MRS JUSTICE LANG: Of course if I am with Mr Buxton on the point that the cap is £5,000, then obviously Cranston J's order could not stand. You say this is the exceptional category of case in which the Claimant should be liable for your costs of attending the permission hearing on the Mount Cooke basis. I must say I am not entirely convinced by that but I think with the figures you have been putting forward that is pretty academic.
Is it right that it is only once all your costs have been paid that the Interested Party's costs can be considered?
MR ASH: Ordinarily in a case such as this in accordance with the principle in Bolton no doubt my learned friend may want to argue in support after costs order, although it may be somewhat academic there would not normally be any costs of a renewal hearing it is extremely rare that there would be a costs of an Interested Party. There are clearly circumstances here which differentiate from the norm.
MRS JUSTICE LANG: Yes. I think it is possible for interested parties to get their costs of filing acknowledgement of service and so on in the same way as Defendants.
MR ASH: Yes.
MRS JUSTICE LANG: Perhaps I should just hear from Mr Hill.
MR HILL: My Lady we had not come with any great expectation that we would be reimbursed.
MRS JUSTICE LANG: You have got the bus fare home.
MR HILL: We fear the pot may be somewhat empty. This case is somewhat exceptional. As said in our response to the application to amend, in our second skeleton argument, the first one proving to be abortive, we set out the summary grounds of resistance we would have set out had we had we had this revised claim properly. I think your Ladyship justified in treating the submission of our second skeleton argument as if it was a summary grounds of resistance, and I am afraid 
MRS JUSTICE LANG: I do have summary grounds of resistance from you.
MR HILL: The first claim, certainly. I think £7,000 was the sum, I think, of that.
MRS JUSTICE LANG: Did you claim for costs?
MR HILL: Yes we did.
MRS JUSTICE LANG: £7,046 plus VAT.
MR HILL: That's correct.
MRS JUSTICE LANG: All right, anything to say?
MR BUXTON: My Lady, to cut this short if possible, I am instructed that if your Ladyship is prepared to apply a cap of £5,000 that is something we would accept in the circumstances because we acknowledge that the Defendant would normally get its costs of the acknowledgement of service. It is very unusual for the Interested Party to get acknowledgement of service costs even though they usually ask for them and in this case Cranston J did not order that. As your Ladyship is aware, there is no reason for Mr Ash or Mr Hill to come today until they knew that we were applying to put in amended grounds. In fact it is quite clear, if for no other reason than they prepared skeletons for this hearing, that they would come in any event. It is interesting also that Mr Ash's brief fee was plainly incurred in any event and it has not been added to by his industry as a result of preparing the revisions to his summary grounds. So if we were trotting backwards, if we were having this discussion when we had lost the renewal hearing but had not sought to amend the grounds I would be strongly resisting his claim costs for turning up today. There would be no basis for it. The claim was rejected in the strongest terms by Cranston J and in their summary grounds and there would have been no basis for them coming today at all. However, it is fully accepted that because of the amendment to the grounds that your Ladyship has permitted, even if it has not actually been claimed for by Mr Ash, maybe his instructing solicitor incurred some additional time and so it should be claimed for. 
Going back to the question of the cap of £5,000, the normal claim for acknowledgement of service costs is in the region of £1,500 to maybe £2,500, it is that sort of range. The acknowledgement of service costs claimed in this case were wholly excessive, and Mr Vidic had an extremely large fee and the total was inappropriate. Curiously enough they very largely reflected because of the timescale in these things the pre action protocol response. There was a problem about the concatenation of those two things, but basically we should not have to pay the starting point should be in the region of £1,500 to £2,500 and the additional costs would be in the region of, shall we say, £2,500 and that is why I make the concession to say that £5,000 is an appropriate figure. 
I think this issue about whether £5,000 is the cap when you have multiple individuals, what happened in this case is that these were lay people who took these proceedings. They were advised by a barrister.
MRS JUSTICE LANG: Direct Access, was it not.
MR BUXTON: Direct Access. They did not know that the sensible thing to do in these cases not for costs reasons but just generally is to have one Claimant. You normally claim as an individual. The fact four other people, because they felt part of a group as often happens in these cases, should not conceivably put the amount of the cap up to £10,000.
MRS JUSTICE LANG: I have not come across this suggestion before that the distinction is between one Claimant or numerous Claimants. I thought the distinction was between individuals and businesses and other legal entities.
MR BUXTON: It is, my Lady. Businesses can encompass companies incorporated for the purpose, you may have all sorts of shareholders and directors. It can include local authorities; things like parish Councils are a legal entity from that point of view. Businesses, obviously, that sort of thing. This is no more than a local group of residents who are trying to stand up for their rights and it would be wholly inimical to the directive and the requirements and indeed the practice direction if the cap was higher than £5,000. In any event, my Lady, we think that that is a justifiable figure to get to in the circumstances.
MRS JUSTICE LANG: Anyone want to add anything?
MR ASH: Just to make the observation that it cannot be right to say that he we did not need to turn up here because the application had been rejected in robust terms and we could have relied upon that situation. Mount Cooke is dealing with exceptional circumstances which include the hopelessness of the case. In fact the Claimant has been told that the claim is hopeless. That simply cannot run for the basis of saying we are not entitled to any of our costs here today.
MRS JUSTICE LANG: This is an Aarhus convention claim and therefore the Claimant has the benefit of costs protection. Cranston J ordered the Claimant to pay £5,250 towards the Claimant's costs of acknowledgement of service, although a higher sum was in fact claimed by the Defendant. I accept the Claimant's submission that the costs cap in this case is £5,000 and so that order exceeded the permissible cap. 
The reason I conclude that the lower cap of £5,000 applies is that the Claimant, the Botley Parish Action Group, is an unincorporated association appearing by its representatives, it is not a legal entity or legal person, and the individual representatives are personally liable. It seems to me consistent with PD45 therefore that the lower costs cap of £5,000 for individuals should apply. The effect of that is that the full costs of the Defendant cannot be met. Although usually the costs of interested parties are not met in these cases I would, if it had been possible, have made the Claimant pay the Interested Party's costs in preparing the revised skeleton argument because I consider that the Claimant should suffer some sanction for the very late change of its stance and substitution of new grounds for judicial review. But I do not think I can realistically make an order in favour of the Interested Party because there simply is not enough money in the available pot. 
I do not accept that this falls into the exceptional category of case in which the Claimant is liable for the costs of the permission hearing so I am going to order that the Claimant must pay the Defendant's costs in the sum of £5,000, representing the costs of the preparation of the acknowledgement of service and the revised skeleton argument following the amendment. 
As I have said, I am aware that the Defendant's actual costs are considerably higher so that is, in effect, a contribution by the Claimant to the Defendant's costs. 
I realise that was a slightly convoluted judgment. I hope it is clear; £5,000 from the Claimant to the Defendant and no order for costs in favour of the Interested Party. Is there anything else I need to deal with? 
MR BUXTON: No my Lady, I am obliged.
MRS JUSTICE LANG: Thank you very much.