Neutral Citation Number:  EWHC 2847 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Monday, 22 November 2004
B E F O R E:
MR JUSTICE SULLIVAN
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THE QUEEN ON THE APPLICATION OF FLORA DAVIES
CARMARTHENSHIRE COUNTY COUNCIL
(1) AIRWAVE MMO2 LIMITED
(2) THE FIRST SECRETARY OF STATE
(3) NATIONAL ASSEMBLY FOR WALES
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Computer-Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
(Official Shorthand Writers to the Court)
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MR WILLIAM UPTON (instructed by Richard Buxton) appeared on behalf of the CLAIMANT
MR PETER JENNINGS (instructed by Carmarthenshire County Council) appeared on behalf of the DEFENDANT
MR CHRISTOPHER BOYLE (instructed by LCC UK) appeared on behalf of INTERESTED PARTY (1)
MR DAVID FORSDICK (instructed by Treasury Solicitor) appeared on behalf of INTERESTED PARTIES (2) and (3)
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J U D G M E N T
(As Approved by the Court)
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1. MR JUSTICE SULLIVAN: This is an application for permission to apply for judicial review in respect of a proposal by the interested party to erect a telecommunications mast on a site at Llethr Gwinau Forestry, Rhandirmwyn, Llandovery. The site is said to be some 260 metres away from the claimant's home, where she lives with her parents. The erection of telecommunications masts is, in general terms, permitted development for the purposes of the Town and Country Planning Act provided various procedural requirements, limitations and conditions, as set out in the Town and Country Planning (General Permitted Development) Order 1995, as amended in Wales by the Town and Country Planning (General Permitted Development) (Amendment) (Wales) Order 2002 ("the Order") are complied with.
2. For present purposes, the procedural requirements are those set out in paragraph A.3 within Part 24 of the Order. By virtue of paragraph A.3(3), before beginning this development, the interested party had to apply to the defendant "for a determination as to whether the prior approval of the authority will be required to the siting and appearance of the development". Paragraph A.3(7) then provides:
"The development must not be begun before the occurrence of one of the following-
(a) the receipt by the applicant from the local planning authority of a written notice of their determination that such prior approval is not required;
(b) where the local planning authority gives the applicant written notice that such prior approval is required, the giving of that approval to the applicant, in writing, within a period of 56 days beginning with the date on which they received the application;
(c) where the local planning authority gives the applicant written notice that such prior approval is required, the expiry of a period of 56 days beginning with the date on which the local planning authority receive the application without the local planning authority notifying the applicant, in writing, that such approval is given or refused; or
(d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, of their determination as to whether such prior approval is required."
3. Under cover of a letter dated 10 December 2003, the interested party applied for a determination as to whether prior approval was required from the defendant. That application was registered by the defendant on 12 December 2003. On 26 January 2004 one of the defendant's senior development control officers wrote to the interested party. So far as material, the letter is in these terms:
"I write to confirm that the Local Planning Authority are of the opinion that Prior Approval is required for the siting and appearance of the proposed mast and ancillary equipment. The proposed site is in an elevated position within the North East Uplands Area of Great Landscape Value, Elenydd - Mallaen Special Protection Area, and Cwm Doethie - Mynydd Mallaen Site of Special Scientific Interest and Candidate Special Area of Conservation and it is considered that the proposed development will have a detrimental [effect] upon the landscape quality. The near future felling of the adjacent woodland would result in the proposed development having a further detrimental [effect] upon the integrity of the landscape quality through its 'alien' presence.
I also wish to bring to your attention the receipt of 25 written objections to the proposed development with the primary reasons of objection being the [effect] of the proposed development upon the landscape and the health implications of the Tetra system utilised by the telecommunications mast.
I look forward to receiving your communication on the above matters."
4. Among those who had sent in written objections were the claimant's parents. They said that they were "desperately worried about the health of our young daughter, who already suffers from unusual sensitivities which can bring on violent reactions". In addition to raising their concerns about their daughter's health, they also referred to visual amenity and the health of farm animals and wildlife and the effect on a footpath.
5. The interested party heard nothing more from the defendant, and in due course it contended that it was able to commence the development by virtue of sub-paragraph (c) in paragraph A.3(7) because it had not been notified in writing as to whether approval had been given or refused. Initially the defendant disagreed with this contention, but in due course, and after further correspondence, it sought advice. It was advised that the letter of 26 January did not amount to a notification that approval had been refused. Adopting Mr Jennings' description of what occurred: the planning authority had clearly "dropped a stitch".
6. In due course, the claimant's solicitors became involved, and in a letter dated 2 September 2004 they urged the defendant to take remedial action of some kind. Matters came to a head towards the end of October when equipment for the mast arrived and access by way of a track began to be constructed.
7. On 1 November Pitchers J granted an interim injunction, restraining any further development, as an emergency measure out of hours. On 2 November 2004 the claim form was issued. That challenged the defendant's decision, or rather the alleged lack of any decision, on two grounds. Ground one was:
"If the interested party is correct in its contention that planning permission has been granted by the GPDO, in the circumstances the Council is under a duty to consider the exercise of powers under section 97 and/or section 102 of the Town and Country Planning Act 1990. It has failed to do so and the claimant seeks a mandatory order or other appropriate relief.
Ground 2: Further or in any event in the circumstances the GPDO does not grant permission as contended by the third party."
8. These grounds were not further particularised, but cross-reference was made to a witness statement of the claimant's solicitor, Mr Buxton, which dealt with the question of whether or not interim relief ought to be granted. That witness statement referred to another communications mast case: Richards v South Bucks District Council, and made the point that that decision was at that time subject to an application for permission to appeal.
9. The matter came before Collins J on 8 November 2004 when he ordered that there should be a rolled-up hearing for permission, and, if permission was granted, in respect of the substantive matters. He continued the interim relief until 12 November and ordered that any amended grounds should be incorporated into the claimant's skeleton argument. Mr Upton's skeleton argument dated 12 November was, in due course, filed and served on the parties on 15 November.
10. In that skeleton argument Mr Upton sought to divide ground 2 as set out in the claim form into two, which for convenience I refer to as grounds 2(a) and 2(b):
"2(a) the correspondence was sufficient to notify the applicant that prior approval was refused;
2(b) on similar grounds to those argued in Richards, that the failure to take into account the representations received is in breach of the required Part 24 procedure and has caused substantial prejudice to the claimant."
11. In addition, he sought permission to add a ground 3:
"In the alternative, the provisions of Part 24 of Schedule 2 of the GPDO should be interpreted so that they are compatible with the Convention rights so far as it is possible to do so, in that the grant of planning permission is conditional upon each of the requirements in paragraph A.3 being satisfied."
12. As I have mentioned, although what is now ground 2(b) was not expressly articulated in the claim form, it was at least foreshadowed in the witness statement of Mr Buxton in support of interim relief. Grounds 2(a) and 3 are new.
13. To cut a long procedural story short, ground 1 has become academic because it has been overtaken by events. The defendant has decided to make an Article 4 direction. It considered how it should respond to the position in which it found itself. It accepted, albeit reluctantly, that it had failed to issue a notification of refusal within the prescribed 56-day period and then considered what, if anything, it could do to put right that error. It decided that the appropriate course at this stage, when construction of the mast has not yet begun, was to make an Article 4 direction. That direction does not come into force immediately; it will have to be confirmed by the National Assembly for Wales.
14. On the information presently available to the court, the Assembly hopes to be able to decide whether or not to confirm the Article 4 direction within the next 2 to 3 weeks, although it should be pointed out that that period is appreciably shorter than the period that the Assembly normally needs in order to decide whether or not to confirm Article 4 directions.
15. It is plain from the officers' report, inviting the defendant to consider whether or not it wished to make an Article 4 direction, that the officers' primary concerns were about siting and appearance. The report to members said this:
"Planning guidance through the technical advice note conveys that whilst health may be a matter for consideration in terms of applying the precautionary principle, ultimately local planning authorities should not seek to replicate through the planning system controls under the health and safety regime. In the determination of the application, a local planning authority were of the opinion that in such a remote location where the nearest property is a farm about 300 metres away, there would not be any significant health implications from the proposed development. Therefore, whilst the local planning authority accede to the fact that the determination letter entitled the developer to implement the planning permission, it remains that the intention was to convey to the developer that the site is a special landscape area and the proposed development in this sensitive area would be detrimental to the landscape quality. The Welsh Assembly Government's code of best practice on mobile phone network development gives guidance in terms of reducing visual impact. The failure to provide appropriate painting of the mast, landscaping of the site area and screening of the equipment cabinet are some of the examples where the application did not respect the landscape sensitivity. In addition, details in relation to the possibility of siting in a less visually prominent location in the adjacent woodland have not been considered."
16. Given that the main burden of the claim was that the defendant should give consideration to what it could do to remedy the dropped stitch, I am satisfied that ground 1 has now become academic. I fully appreciate that if the third party commences development, and certainly if that development is completed, then the Article 4 direction would cease to bite against the completed development, and if the Council wished to secure the resiting of the mast or certain other work, it would have to consider the use of other powers in the Town and Country Planning Act, such as a Discontinuance Order under section 102. However, I am quite satisfied, in the light of the defendant's evidence, that it is not simply sitting on its hands, saying that it can do nothing. It is alive to the fact that there are procedures in the planning code which can be employed to remedy errors and it is prepared to invoke those remedies if it thinks it appropriate to do so.
17. For these reasons, I am satisfied that the defendant is alive to its powers and duties as local planning authority and there is no need for any mandatory relief.
18. So far as grounds 2(b) and 3 are concerned, there is general agreement that if they are arguable, then they are best dealt with together as representing two aspects of the same problem: what is the position under domestic legislation on the one hand, and in the light of the European Convention on Human Rights on the other? Moreover, it is further agreed that if they are to be dealt with together, they should not be dealt with until after the Court of Appeal has considered the forthcoming case of Nunn v the First Secretary of State EWHC 1410, in which permission to apply for judicial review has been granted by Carnwath LJ. Nunn is to be considered in January 2005 and the issue raised in the claimant's ground 3 in these proceedings is also raised in Nunn. It is clearly sensible to await the Court of Appeal's decision in Nunn before proceeding with ground 3.
19. I acknowledge that ground 2(b) extends the dicta in Richards on which the claimant relies beyond the point adopted by HHJ Rich QC, and I further appreciate that it may be said that ground 2(b) is, as things stand at the moment, contrary to authority at first instance (see Richards and Nunn), and also contrary to dicta in the Staffordshire Moorlands case in the Court of Appeal, although that was a case decided before there was a requirement (in what is now the GPDO) to consult. Although ground 2(b) might be regarded as a somewhat forlorn hope on its own, I am satisfied that, in conjunction with ground 3, it is arguable.
20. That is not the case, in my judgment, with ground 2(a). The letter dated 26 January 2004 has to be construed in an objective manner. The question is not what the letter writer intended in the inner recesses of his mind, but what did he actually say in the letter. Despite Mr Upton's valiant attempts to persuade me that somewhere in this letter one can discover a written notification that approval had been refused, I find it impossible so to construe the letter. I accept his submission that notification for the purposes of paragraph A.3(7)(c) can be relatively informal; one is not dealing with a refusal notice as in the case of a refusal of planning permission. But nevertheless, one does have to find something in writing notifying the applicant not merely that prior approval is required, but that such approval has either been given or refused. While the letter of 26 January states that prior approval is required, it is plain that it does not say that prior approval has been refused.
21. Mr Upton drew my attention to a number of features in the letter: firstly, the reference to the site being within an area of great landscape value, a special protection area and a site of special scientific interest. If the site was in an SSSI then logically it would mean that there would be no question of permitted development rights and express application for planning permission would have to be made. It seems to me that the erroneous reference to the site being within an SSSI cannot be regarded as a notification that an application for approval required pursuant to permitted development rights has been refused.
22. Mr Upton referred to the fact that the letter stated that the development "will have a detrimental effect on the landscape quality", which would be a reason for refusing approval. It also referred to the future felling of adjacent woodland so that there would be further detrimental effect, and to the fact that there had been 26 written objections. It is certainly true that the letter identified a number of grounds on which approval might well be refused. Certainly it can be said that the letter was not particularly encouraging. What the letter did not do is to say that approval was refused. It is to be noted that, having made a number of discouraging observations, the writer looked forward to receiving the applicant's communication on those matters: could the applicant answer the concerns expressed in the letter? In short, it is simply impossible to construe this letter as a refusal for the purposes of paragraph A.3(7)(c). I am satisfied, therefore, that ground 2(a) is not arguable and I refuse permission to apply for judicial review on that ground.
23. The remaining question is whether permission ought to be granted to apply for judicial review on grounds 2(b) and 3 upon the basis that they are arguable. The interested party has argued that permission should not be granted, relying in particular upon the lack of interest on the part of the claimant and upon the question of delay. Dealing with delay first of all, it was reasonable for the claimant to try to ascertain what, if anything, the defendant proposed to do to remedy the consequences of the failure to issue notification of refusal within the 56-day period before applying for judicial review. Thus it may well be said that, since 2 September, there has not been undue delay. It is, however, fair to observe that the letter of 2 September was written some months after the 3-month limit following the 11 February 2004, which was the time after which the interested party was entitled to go ahead and commence the development, having not received any notification of a refusal from the defendant.
24. So far as the claimant's interest is concerned, it seems sensible to proceed on the basis that the proper inference is that the claimant agrees with and endorses the concerns expressed by her mother on her behalf. Certainly there is no evidence to the contrary. It seems to me, therefore, that the claimant does have some interest in that she lives relatively close to the proposed mast and is concerned about her own health. It is plain that her parents, who actively participated in the consultation process, raising a number of grounds, would have had a somewhat greater interest and there can be no possible doubt that, had the claim been made by them, they would have had a sufficient interest to apply for judicial review. Their daughter's interest, whilst somewhat less, cannot be dismissed as non-existent.
25. However, the extent of and nature of the claimant's interest is relevant. Whilst her mother's letter of objection does refer to other matters, landscape and so forth, it is plain that the claimant's and her mother's primary concerns relate to the health implications of the proposed mast. That much is plain not merely from the claimant's mother's representations to the planning authority, but also from her witness statement in these proceedings. I do not suggest that the claimant's health is the only issue of concern, but it is plainly the primary concern. When considering that, it has to be borne in mind that any objection on grounds of public concern about the health implications of such masts has (to put it at its highest from the claimant's point of view), to be treated with considerable caution as a ground of objection in the light of the decision of the Court of Appeal in T Mobile UK Limited and ors v First Secretary of State, judgment dated 12 November 2004, reported in The Times.
26. In addition to that, it is plain that the defendant has considered whether or not the health implications of the mast are such as to amount to a significant planning consideration in this case; and has concluded that they are not. I have already set out the relevant passage from the officers' advice to the defendant's Executive Committee in the context of the question whether an Article 4 direction should be applied for.
27. Bringing these factors together, I do not consider that the claimant should be refused permission to apply for judicial review upon the ground that she lacks sufficient interest for making an application, or that there has been undue delay. For these reasons, therefore, I am satisfied that it is appropriate to refuse permission on grounds 1 and 2(a), but to grant permission on grounds 2(b) and 3, and to adjourn the substantive hearing in respect of those grounds until after the Court of Appeal decision in Nunn, and to give the parties liberty to apply so that, for example, they can apply to restore the matter to the list, to treat the evidence given in Nunn as though it was given in these proceedings and so forth.
28. The remaining question, having granted permission and adjourned the substantive hearing in that way, is whether interim relief should be continued. I am satisfied that it should not, principally for these reasons. Firstly, while I am persuaded that grounds 2(b) and 3 in combination are arguable, they cannot be fairly described as strongly arguable. On its own, ground 2(b), as I have indicated, is contrary to first instance authority and is barely arguable. Ground 3 is arguable, but given the terms in which Carnwath LJ granted permission, it cannot fairly be described as a strongly arguable, as opposed to merely an arguable, point.
29. Secondly, while it is true to say that the claimant does have some interest in the matter, it cannot be said that she herself, as opposed to, for example, her parents, who actively participated in the consultation process, has a very strong interest.
30. Thirdly, the nature of her interest is relevant. One can understand her concern about her own health. But insofar as she complains about a failure on the part of the defendant to follow proper procedures and thus to require the interested party to make an application for prior approval, it has to be borne in mind that the claimant's concerns are not shared by the defendant. The defendant is principally concerned about matters of landscape and visual impact and does not consider that the health implications of the proposal are a significant planning objection.
31. Next, delay. Whilst the delay is not such as to cause me to refuse to grant permission, I cannot ignore the fact that it was not until September of this year that the claimant's solicitors raised the matter with the defendant in such a way as to bring the issue to the attention of the interested party. Had the matter been raised at an earlier stage, there is little doubt that the interested party could have taken the necessary steps to obtain either an approval under Part 24 of the GPDO, or possibly an express approval. I bear in mind also that ground 3, in respect of which I have granted permission (and the only basis on which I would have allowed ground 2(b) to proceed was in conjunction with ground 3), did not emerge until very late in the day, midway through November, many months after 11 February 2004.
32. Delay of itself is perhaps of less consequence than the implications of delay; that is to say, the prejudice that would undoubtedly be suffered by the interested party. The details are set out in the evidence. In summary, the interested party is contractually obliged to deliver the telecommunications mast ready for use to the police on 15 December. There is, in effect, a period of grace of four weeks during which it will not be liable to pay liquidated damages and therefore it has, in effect, until 10 January to complete the work, otherwise it is potentially liable to pay damages.
33. There is no prospect in this case of any sort of cross-undertaking being offered, and therefore the liability of the interested party, pursuant to its agreement, is a significant matter. But what is of greater significance, in my view, is the interest of the police in having a telecommunications system delivered to it. I have been provided with a letter from the Powys Police written by the superintendent in charge of the programme. It is plain from that letter that, during January 2005, the force is planning to take formal delivery of the service and that the service is part of an almost complete county-wide coverage. Once the force have taken delivery of the service, there is then going to be a period of intensive training and technical and process development work before the system actually goes live in March 2005. That is when the police force is due to start using Airwave in place of their current analogue system. The letter says that full migration is planned to be completed by the end of June 2005. Placing those dates at risk is bound to place the police in difficulty. Their ability to introduce the system across the entire force is bound to be adversely affected. It seems to me, therefore, that there are powerful public interest reasons as to why the interim relief should not be granted, in addition to what might be described as the commercial interest of the interested party in being able to discharge its contractual obligations.
34. There is one further consideration which I bear in mind and that is the attitude of the defendant. As things stand at the moment, the indications are that the defendant believes that the concerns which led it to make an Article 4 direction may well be addressed by means of negotiations with the interested party. The matters referred to in the report, painting the mast, screening the equipment at the base of the mast and so forth, have been mentioned by Mr Jennings before me today. I appreciate that the evidence about this is relatively limited, but the fact remains that the responsible local planning authority does not appear to be pursuing a root and branch objection to the proposal, and it is certainly relevant that it at least appears to believe that its concerns may well be accommodated as a result of discussions with the interested party. If that does not prove to be the case, then it will, of course, be open to the defendant to consider what other powers in the Town and Country Planning armoury it might wish to employ. Its past conduct in being prepared to make an Article 4 direction does not suggest, to me at least, that it will be reluctant to employ those powers if it thinks it appropriate to do so and if it considers that there is a really serious planning problem which has to be addressed.
35. For all of these reasons, I am satisfied that it would not be right to continue interim relief, even though I have been prepared to grant permission upon the basis that grounds 2(b) and 3 are, just, arguable.
36. MR BOYLE: May I just make one small factual correction in my Lord's judgment?
37. MR JUSTICE SULLIVAN: Yes, of course.
38. MR BOYLE: It was right at the beginning of the judgment when my Lord mentioned the matter came before Collins J in November. My Lord said that he continued to give interim relief until today. The order was for interim relief to continue until 12 November.
39. MR JUSTICE SULLIVAN: Then you gave an assurance and then an undertaking that it would not begin to erect the mast before 22 November.
40. MR BOYLE: My Lord, that leads me to this matter. Collins J, when dealing with interim relief, reserved costs to the rolled-up hearing, that is today. The judicial review, of course, now continues on the matters my Lord has granted permission for and I imagine the position remains the same that costs are reserved in that to that hearing.
41. MR JUSTICE SULLIVAN: Unless anybody has any firm views to the contrary. I doubt that they have.
42. MR BOYLE: However, disposed of today is the interim application -- interim relief -- and it has been disposed of in favour of the interested party. My Lord will have seen that throughout this, very properly, the defendant has not taken an active part in the debate on the injunction, that being seen as a matter between principally the claimant and the interested party. The interested party has, therefore, had to appear in order to defend its legal rights and has, with great respect (inaudible). In those circumstances, I do seek costs of and in connection with that interim relief.
43. MR JUSTICE SULLIVAN: That is on the usual legal aid basis?
44. MR BOYLE: It is, my Lord.
45. MR JUSTICE SULLIVAN: What do you say about the costs on the interim relief, Mr Upton? The other costs will simply be reserved and sorted out after the judicial review proceedings have come back.
46. MR UPTON: Yes, my Lord, and there will be a chance to discuss those amongst the parties depending on what happens. Regarding the interim application, it partly depends how one approaches it because in a sense, as my learned friend has pointed out, it only ran until today in the sense that it would always have to be a fresh application should it then continue any further. So the first point, my Lord, would be that it would be inappropriate to consider it as if it was a failure in the, sort of, whole proceedings. It really should be seen as from the date it was granted until today, whether or not it was appropriate that interim relief should be granted.
47. My respectful submission would be, in order to hold the ring until what was seen as a rolled-up hearing -- it was fully argued out before Collins J -- what the appropriate stage should be. All the arguments you have heard today were canvassed on 8 November in terms of, basically, should it be allowed to go ahead without an interim injunction or not. In terms of that brief period from the 8th through to the 22nd -- I suppose, my Lord, it started from the 1st -- that was necessary to make this hearing viable and certainly has had a major effect on the ground 1 point. It is only because of the nature of what has occurred with the undertaking previously deemed from the injunction that we are not faced with the situation that Article 4 has no force whatsoever. It is as a result of that that we have been able to hold the ring and it was wholly appropriate that that brief interim respite was granted and it should be seen in those terms. It was specific until today. Further evidence has clearly been provided by both parties, both my instructing solicitors and indeed also those who instruct my learned friend, as to the potential effects of any further delay. Certainly in terms of what was before you, that was the appropriate question.
48. MR JUSTICE SULLIVAN: It seems to me it is a bit difficult to disentangle interim relief from the majority of the hearing in that practically every point relevant to interim relief is also relevant to whether or not you should get permission -- delay, extent of interest, nature of interest, arguability, extent of arguability. On the basis that you have got permission for grounds 2(b) and 3, it is difficult to see that the interim relief significantly extended the hearing, really. One might say that.
49. MR UPTON: If one looks at it in that broad sense, and one looks at the underlying judicial review proceedings, I have to make this point at this stage of costs that, of course, my learned friend has still not actually put in an acknowledgment of service. In terms of appearances at the permission hearing, he normally would not be allowed to be heard.
50. MR JUSTICE SULLIVAN: I do not think that is your best point.
51. MR UPTON: No, it is not, but it is a matter of great surprise that, although the Council had been able to produce one ten days ago, it has not appeared on behalf of the interested party. In a sense one has to wrap it up in the whole process.
52. MR JUSTICE SULLIVAN: The thing you have really gone down on is 2(a) because ground 1 was a perfectly reasonable point to raise, subject to Mr Jennings' point about they were thinking about it anyway, but ground 1 has gone out of the window because it has been academic, not because it is a bad point. Ground 2(a) is gone, right. Yes, anything else?
53. MR UPTON: On this narrow point about the costs of the application, to some extent I would be looking to say it should be dealt with in the overall issue of costs. There is nothing separate that has occurred in relation to the interim application. As you say, the ground that has not succeeded was part of that. In a sense, ground 1 has been overtaken by events partly outside both the interested party's and the claimant's own circumstances and the nature of what has occurred. In that instance, one might say an order as to costs because of ground 1 being overtaken and becoming academic -- but otherwise clearly there were still some live issues which would have been attached. But if you were minded to deal with it today, certainly we would prefer to have no order as to costs; or, alternatively, it would have to be dealt with in more detail.
54. MR JUSTICE SULLIVAN: Thank you. Yes, Mr Boyle, I am bound to say, although it is perfectly true Mr Upton did say "and I want the interim relief continued", it is not as though there were really any very separate arguments about interim relief other than the question of prejudice to your clients, I quite understand that -- that and the police -- but many of the other arguments about whether the points were arguable and how strongly they were arguable and an interest in delay and so on, there is a huge amount of overlap that we would have had to go through in any event. How much shorter would your skeleton argument have been if we cut out interim relief?
55. MR BOYLE: In strict terms, my Lord, it would not have been shorter at all --
56. MR JUSTICE SULLIVAN: Because you would be there building things, I understand that.
57. MR BOYLE: -- for this reason: the skeleton argument does not address interim relief because interim relief was not expressly claimed for today's hearing. The costs are in relation to the application for interim relief which has been heard and costs on that matter reserved so that my Lord can deal with it in the context of the judicial review hearing, Collins J assuming that today disposed of the case. My case is put on this basis: the interim relief, that is the injunction to "hold the ring", was never the well-founded point because as one analyses the grounds, even as they eventually emerged, it was not necessary for the claimant to make those grounds good to have the development not commenced or completed. I can quickly run through them. Ground 1, which to begin with certainly had always been the burden of the claimant's case, if development had not been started, it will fall; if it has, then it is (inaudible). So in neither case can it be said that interim relief is required in order to preserve the position of ground 1. My Lord has the Alnwick case regarding compensation.
58. Ground 2 as a matter of relief is either a good point or a bad point. It is not in any way dependent on whether the thing has been built or not. Ground 2(a) is construction of a document (inaudible) development has been built. Ground 2(b) is construction of the statute, again not dependent on the thing that is being built. Ground 3, similarly with ground 2(b), with the human rights point added.
59. In the event that the Court of Appeal in Nunn finds along the lines this claimant is arguing before the court and so one imagines this claimant is successful, if there be a further stage in this hearing, then again it would not make a difference in terms of the legality of the development that the development had been put up in the meantime. If it is declared an unlawful development, then the Authority has all of its panoply of statutory powers. It is my respectful submission it was for those reasons, although not articulated, that Collins J was disinclined to continue any interim relief. We do not know the basis on which Pitchers J did in that application, but it was only a day, and it was only in the circumstances that the interested party found itself in, namely it did not need to build in the first week but it did in the second week, that we came up with this hybrid solution of an injunction with then liberty to apply. If I may say, it was on the basis of this application that we were able not to build in the last week just gone.
60. MR JUSTICE SULLIVAN: Thank you, very much.
61. The costs of the application for judicial review are reserved, save that the claimant is to pay the interested party's costs in relation to the application for interim relief, those costs to be subject to detailed assessment.
62. MR JENNINGS: My Lord, can I address you about ground 1. I appreciate the judicial review matter as a whole is not finished, but essentially the main one that the Council would be concerned with is. My Lord, I go back -- I apologise for the degree of repetition -- in January Mr Phillips made a mistake. But firstly no relief is asked in respect of that mistake in the sense that nobody asks for a declaration that he made a mistake. It would be unnecessary and it would not take anyone anywhere. It is, in my submission, a mistake bearing in mind that Mr Phillips is not a lawyer, and A.3(7) is rather peculiar in a sense, perhaps even to lawyers. They may wonder why it is drafted like that. The consequence of that is that the authority, after correspondence with the interested party, came to the conclusion that it was not a refusal. The county solicitor, when asked, gave that opinion, and he turns out to be right. As a result of, if you like, a further -- I am sorry --
63. MR JUSTICE SULLIVAN: Exchange of correspondence?
64. MR JENNINGS: Yes, if you like, with Mrs Davies herself. The Council sent off for further advice from learned counsel Miss Douglas and then got from Mrs Davies an opinion from Mr Mayo(?), who is some sort of legal adviser acting for some pressure group, which he got from somewhere. This is all sent off and a fairly complex opinion comes out to the same effect, that it is fact. We then get, by the time we are in August, on about the 11th, the interested party starts to build an unlawful track. A day or so later, the officers of the Council hear about it, they go out and look at it, and a day later they issue a planning contravention notice and practically left the claimants in a spot of trouble. It is not a question that the Council has simply been sitting on its bottom and saying: we are not interested, we wash our hand of it. They are going into the matter and responding to what occurs. The delay in coming to the final conclusion about the effect of the correspondence is because, in effect, those acting on this side keep asking for reconsideration of it. In September one gets this letter at the beginning from Mr Buxton in which he suggests, in effect, four things. One is, apply to the court for a declaration. We do not do that because we do not need one. We have taken advice and it turns out that that advice is right. One does not need to expend money on asking the court's advice. Secondly, to seek an order quashing the permitted development permission. On the face of it, that means what Judge Rich said, he could not have, and there is no reason to think any differently. So we do not do that. Thirdly, exercise your powers under section 97 and 102.
65. Your Lordship will have seen in the skeleton an explanation of why, in our acknowledgment of service and in the letter that was sent by Mr Murphy, why we think that inappropriate. There are at least three reasons. One is that, if you are going to make an Article 4 direction, that is what you are considering, it is the appropriate relief. Section 97 almost certainly does not apply and if it does, it has considerable disadvantages, and section 102 simply has not arisen yet and there is not anything there.
66. My Lord, we get another letter later than September enclosing a copy of ex parte Richards. What that is supposed to prove still is not clear because, on the face of it, it is against the claimant, and we are told, bearing in mind this is not considered, it is told, take action under section 97 and 102, or consent to being judicially reviewed. One asks what the latter means because, plainly, if we decide not to take that action, we are not then going to say in the same breath that we will agree to an order of the court telling us to do it. Presumably that means some kind of quashing order. But that does not arise here because there is no decision to quash. So it is not a matter of finding a friendly claimant to apply to quash your own decision. There was not one. The Council takes authority from this advice, as you see in the skeleton. She advised that it is Article 4 that is important and the others that are not. The Council considers its powers.
67. On 1 November Mr Buxton applies for an injunction restraining the Council from permitting works to begin on the construction of the mast. Leaving aside that that is the most blatant example of trying to disguise a mandatory order -- was it a mutual one, one could not possibly imagine -- what it amounts to is this: that the only way in which that could have been done is by telling the Council, you must exercise some of your powers. Now, there can be no power that can be exercised instantaneously to stop the mast going up, except a stop notice, which would plainly have been unlawful.
68. MR JUSTICE SULLIVAN: Forgive me. You are warming to your theme, Mr Jennings, but as you made the point, Miss Douglas suggested the use of Article 4, I cannot remember when that was, was it August time -- in October. In due course that was done, but it does seem to me that, even if Mr Buxton did not specifically refer to Article 4, one obvious way, if you like, to pre-empt ground 1 would be for the Council to have written at some stage, I do not know, in October and said there is no point in getting het up about this, we have been advised by counsel that we should think about what action we can take and she said that Article 4 may be appropriate and we are going to take a report to the members on an Article 4 point. So maybe that was done; but that would be the way to, as it were, stop ground 1 in its tracks. At the moment I have not seen a letter like that. I have seen ground 1 and then along comes a nice report setting out all the factors for the meeting of 15 November, I think.
69. MR JENNINGS: My Lord, if one looks at tab 4 in the bundle my learned friend for the developer has produced, that is the one on Article 4. If you turn to the bundle of authorities, tab 4, 39038, about the middle of the page:
"Service of the notice of the direction. There is no obligation on the authority to notify ... and indeed the prior notification might have the effect of inducing the owner to begin working in the attempt to pre-empt the process [and so on it goes]." (quote unchecked)
70. My Lord, counsel's advice was consistent with that, that it was unwise to say specifically that one is considering Article 4 because it might get round to the developer. My Lord, that is why the letter that was sent to Mr Buxton said: we are considering our powers generally. We bear in mind everything you say about Flora's medical condition, subject to the provisions of the relevant policies. But we do not think section 97 and section 102 are the right way.
71. My Lord, a day or so later we get a reply that says: yes, they are, and what about Article 4? Now, my Lord, we do not quite know how that goes in and the claimant's mother, Mrs Davies, is on fairly good terms with one of the Council members. It is possible that it is, so to speak, a leak from somewhere on our side. It may also be possible that those acting for the claimant eventually got there themselves as a result of further consideration. But when this action was brought, it was asking for an order that we consider our powers under section 97 and 102. There is no suggestion that the existence of Article 4 penetrated to those acting for the claimant. They only act if Article 4 is mentioned in their grounds served in the skeleton argument on 12 November, in other words, well after they have been told it has already been done and there will be a decision imminently.
72. Were it necessary to have argued separately whether there should be permission for that amendment, in my submission the answer would be certainly, no. It cannot be said that on Friday the 12th, it is necessary to amend and add a claim that we should consider Article 4 when we just said, and there is no reason to doubt, it is in the acknowledgment and so on. Yet that is exactly what we are doing and it is about to come to a decision. That would then leave the action simply where it came in, 97 and 102, and, my Lord, the short answer to those, in my submission, is not merely that we were indeed considering them so far as they deserve consideration, but that they are wrong. Almost certainly, and I do not repeat what is set out in my skeleton, but, in my submission, the position is overwhelming, that 97 does not apply to permitted development rights. 102 does not arise when there is nothing there yet, and even if they did, plainly they are not desirable to use when the other powers are available under Article 4. My Lord, for that reason, in my submission, this claim was wholly misconceived from the start. I hope it is not too exaggerated an analogy to say that, no doubt, those acting for the claimant think, in effect, that they are the people who stuck a rocket under the Council to launch it into action. The contrary view, in my submission, is that they are more like the schoolboy throwing the firework and seeing (inaudible). They ask us to do all sorts of things other than the one thing which is right.
73. My Lord, in my submission, we should have our costs relative to that ground, and that, in effect, is the only one in which we have taken any active part.
74. MR JUSTICE SULLIVAN: The position is, in your acknowledgment of service, you said you were considering whether there are any other powers, including Article 4. So that gets that far, and then we get the skeleton argument --
75. MR JENNINGS: It said at the hearing on the 8th, my Lord, that the thing is going forward. In fact, we got the wrong Committee, but immediately after the hearing it was the right one, so the claimants were told that the board (inaudible) 50. So there was a letter on 3 November that said we are considering our powers without specifying which -- the acknowledgment immediately before 8 November, I think it was Friday the 5th.
76. MR JUSTICE SULLIVAN: Yes.
77. MR JENNINGS: The point is, whatever suggestion there might be that the Council was a bit lax earlier on, and I would, so to speak, refute that, but the simple fact is we were a good deal faster than those who were supposedly stirring us into action. My Lord, the only thing that matters is that we were there both before these proceedings began and certainly before it occurred to them.
78. MR JUSTICE SULLIVAN: Yes. Thank you, very much. Mr Upton?
79. MR UPTON: My Lord, I suppose Mr Jennings is glad to get his teeth into something, but it is, I am afraid, misconceived on the actual facts of what has happened, but also the starting point for this is that you are being asked to grant costs against a claimant at a permission hearing. Mr Boyle's application for costs was asking for the costs in regard to the interim application and therefore wholly different considerations would apply. At the permission stage, which is where we are, as you will be aware, it is not normal for costs to be awarded against a claimant.
80. MR JUSTICE SULLIVAN: I do not need that. In particular, if one is saying: we think the appropriate thing to do is Article 4; we are considering that, and then I have your skeleton, paragraph 26 --
81. MR UPTON: I had to write it in that way because I did not know -- I have to say it was e-mailed and acknowledged on the 12th and it had to be written --
82. MR JUSTICE SULLIVAN: This is a permission hearing, but on the other hand it is a rolled-up one as well. Certainly, if the Council was interested in the other grounds, it could turn up and argue to the contrary. But actually, insofar as it is interested, it would be quietly happy for you to succeed on the other grounds even though it cannot actually positively advance them on your behalf. So far as ground 1 is concerned, presumably it could simply have said: well, we do not need to turn up; we have done what is asked.
83. MR UPTON: My Lord is right, we never got an indication from the Council that they are acceding to our request in September, or our repeated request in September. What you find, of course, in the bundle is their letter of 3 November, which is the first time that they acknowledge our letters of September. It is page 86 of the bundle, my Lord. They say: "I refer to your letters of the 2nd September and the 29th September", the first time that they respond, and this is the day after, as your Lordship sees, because the development is happening on site. That was the spur for it. we have to start because nothing has happened. I appreciate Mr Jennings knows what is happening in the Council, but no one else does. In the circumstances, where he is saying apparently it was unreasonable for us to advance this ground, we had no way of knowing how they were responding to, at this stage, a very urgent situation.
84. MR JUSTICE SULLIVAN: I do not think I need trouble you further on this. Thank you, very much.
85. MR UPTON: I am very grateful.
86. MR JUSTICE SULLIVAN: I am not satisfied that it would be appropriate to award any costs to the Council in respect of this hearing. I appreciate this is a rolled-up hearing as well as a permission hearing, but the Council's position on the grounds other than ground 1 was fairly largely one of neutrality. So far as ground 1 was concerned, whilst I can understand the reasons that might have prompted the Council not to make it clear to those instructing the claimant that they were actually alive to Article 4 at an earlier stage than 5 November, having done so, beyond merely saying that the Council had now resolved to make an Article 4 direction if the ground was academic, it does seem to me that the Council really needed to do little more than that. So whilst it was very nice to see Mr Jennings here, I do not think it would be appropriate to award the Council the costs of this hearing.
87. Is there anything else? I do hope there is not. The associate is reminding me, I did mention it, what I call the usual legal aid order for costs not to be enforced without leave of the court.