R. v. London Borough of Hammersmith and Fulham exp. CPRE London Branch

Transcript date:

Tuesday, December 21, 1999



High Court

Judgement type:



Harrison J




Royal Courts of Justice

The Strand


Tuesday 21 December 1999

B e f o r e:



- v -




Computer Aided Transcription by

Smith Bernal, 180 Fleet Street, London EC4

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MR ROBERT McCRACKEN (instructed by Messrs Richard Buxton, Cambridge

CB1 1JX) appeared on behalf of THE APPLICANT


Services Department, London Borough of Hammersmith & Fulham) appeared



(instructed by Messrs Berwin Leighton, London EC4R 9HA) appeared on



(As Approved by the Court)Tuesday 21 December1999

1. MR JUSTICE HARRISON: This is an application for judicial review, which is brought by the London Branch of the CPRE, which relates to an urban development project involving a major redevelopment of the White City area in London, including a shopping centre of up to 600,000 square feet. In the view of the first and second respondents, who are, respectively, the local planning authority and the developer, it would represent an important regeneration of this part of London, creating a significant number of jobs, although the applicant does not agree that it would achieve urban regeneration.

2. The applicant's main complaint is that no environmental assessment was required by the first respondent to be provided before outline planning permission was granted for the development, contrary to Articles 2 and 4 of the Environmental Assessment Directive 85/337/EEC. In those circumstances, the main issue is whether European law places any duty on the first respondent to revoke, or to consider revoking, the outline planning permission granted for the development.

3. A very brief chronological planning history is that the application for outline planning permission was made in December 1993. According to the evidence filed on behalf of the first respondent, it was decided that no environmental assessment was required. In September 1994, the first respondent resolved to grant outline planning permission for the development, subject to the completion of an agreement under section 106 of the Town and Country Planning Act 1990. That agreement was completed and, in March 1996, outline planning permission was granted.

4. In October 1997 an application for approval of reserved matters was made. Negotiations ensued which resulted in changes to the detailed scheme and which led to further applications for approval of reserved matters in September 1998. They were eventually considered by the first respondent on 12 October 1999 when it was resolved to approve the reserved matters, although the approval has not yet been formally granted pursuant to the resolution.

5. On 11 October 1999, the day before the resolution to approve the reserved matters, the applicant applied to the Court for permission to move for judicial review of a number of decisions of the first respondent: firstly, the outline planning permission of March 1996; secondly, the anticipated approval of reserved matters pursuant to that permission; and thirdly, the refusal of the first respondent to consider exercising its powers under section 97 of the Town and Country Planning Act 1990 to revoke the outline planning permission.

6. Section 90(1) of the 1990 Act provides:

"If it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land granted on an application made under this Part, the authority may by order revoke or modify the permission to such extent as they consider expedient."

7. By letter of 13 September 1999 the applicant's solicitor had asked the first respondent to confirm that it would consider exercising its power under section 97 to revoke the outline permission, having regard to its duties under Article 10 of the EC Treaty. By letter of 28 September 1999, the first respondent's principal planning officer had replied:

"Your extraordinary request that the Council consider revoking the planning permission in reality bears no critical examination. None of the council's duties under the EC Treaty require or justify such action."

8. On 12 October 1999, when the appropriate committee resolved to approve the reserved matters, officers informed the committee of the applicant's request for revocation of the outline planning permission, together with their response rejecting the request. The matter was, in effect, noted by the committee without any resolution being passed relating to it.

9. On 26 October 1999 there was an oral hearing of the applicant's application for permission to move for judicial review before Richards J, when submissions were made by counsel on behalf of the applicant and the first and second respondents. Richards J refused the applications relating to the outline planning permission and the approval of reserved matters. Although he concluded that it was arguable that the first respondent's officers did not have delegated authority to decide that an environmental assessment was not needed, he refused the application relating to those two matters on account of the significant delay in making the application. The outline planning permission to which the approval of reserved matters related has been granted in March 1996 and the applicant was aware by 1997 that there had not been an environmental assessment.

10. Richards J, however, decided that there was an arguable point as to whether European law imposed a duty on the first respondent to exercise its power of revocation under section 97, or at least to consider the exercise of that power. He therefore granted permission to apply for judicial review of the first respondent's refusal to consider exercising its power of revocation, that decision having been made in September 1999, although, in doing so, he remarked that the applicant faced serious problems on that aspect of the case.

11. Subsequently, the applicant renewed its application relating to the outline planning permission and the approval of reserved matters to the Court of Appeal, which concluded its hearing into that matter two days before the start of this hearing. The Court of Appeal announced its decision to dismiss the renewed application, but stated that its reasons would be given later. In fact, the judgment of the Court of Appeal was given this morning. Thus it is that this hearing is concerned only with the revocation issue, the application relating to the outline planning permission and the approved reserved matters, having been dismissed by Richards J and by the Court of Appeal. There is nothing in the judgment of the Court of Appeal delivered this morning of which I am aware that affects the view that I have formed in relation to the revocation issue which I have to decide.

12. It is necessary next to refer briefly to the relevant legislative provisions. Articles 10 and 249 of the European Treaty are central to the applicant's case. Article 10 (which was formerly Article 5), provides as follows:

13. "Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty".

14. Article 249 (which was formerly Article 189), provides so far as relevant, as follows:

"In order to carry out their task and in accordance with the provisions of this Treaty, the European Parliament acting jointly with the Council, the Council and the Commission shall make regulations and issue directives, take decisions, make recommendations or deliver opinions.


A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods."

15. The European Directive dealing with environmental assessments is Directive 85/337/EEC. Article 2(1) of that Directive states:

"Member States shall adopt all measures necessary to ensure that, before consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to an assessment with regard to their effects. These projects are defined in Article 4."

16. "Development consent" is defined in Article 1(2) as meaning

17. "the decision of the competent authority or authorities which entitles the developer to proceed with the project". Article 4 defines the projects by reference to those in Annex 1, which have to be made subject to an environmental assessment, and those in Annex II, which have to be subject to an environmental assessment if Member States consider that their characteristics so require. Annex II includes, under paragraph 10, "urban development projects". Articles 5 to 10 and Annex III set out the procedural requirements for assessment of qualifying development projects.

18. The Directive was implemented and transposed into our domestic law by the Town and Country Planning (Assessment of Environmental Effects) Regulations 1988, which were made pursuant to the European Communities Act 1972. Those Regulations are the provisions that were in force at the time of the grant of the outline planning permission in March 1996. Regulation 4(2) of the 1988 Regulations provides:

"The local planning authority or the Secretary of State or an inspector shall not grant planning permission pursuant to an application to which this regulation applies unless they have first taken the environmental information into consideration and state in their decision that they have done so."

19. Regulation 4 applies, inter alia, to a Schedule 2 application, which is defined in Regulation 2(1) as an application for planning permission for development of any description mentioned in Schedule 2 which would be likely to have significant effects on the environment by virtue of factors such as its nature, size or location. Paragraph 10 of Schedule 2 includes "an urban development project".

20. The question for the first respondent, therefore, was whether the White City redevelopment proposal was an urban development project which would be likely to have significant effects on the environment by virtue of its nature, size or location. Mr Pallace, who is employed by the first respondent as assistant director (development services) of the Council's environment department, and who is responsible for the council's development control function, has stated in his witness statements that the need for an environmental assessment was considered by officers, including himself, and that it was decided, for the reasons given in his statements, that such an assessment was not needed.

21. The point that is raised by the applicant is that the matter was not considered by a committee and, insofar as it was considered by an officer, it was not considered properly by an officer with delegated power to do so. That was the point taken before Richards J on the permission application, which he found to be an arguable point but in respect of which he did not grant permission to apply for judicial review of the decision to grant outline planning permission on account of the significant delay in making the application since the grant of the permission in March 1996.

22. The result of that decision is that the outline planning permission, which in turn leads to the approval of reserved matters, cannot now be challenged and must be taken to have been lawfully granted. Nevertheless, Mr McCracken raises, on behalf of the applicant, the matter of delegated powers again in this Court in support of his submissions on the revocation issue. He has referred to the first respondent's scheme of delegation of powers to committees and to officers, to the correspondence requesting information about the delegation in this case, and to Mr Pallace's witness statements dealing with that aspect of the matter. His overall submission is that there was not a proper delegation of the decision as to whether an environmental assessment was needed, and that no written record of the decision has been produced by the first respondent, although the scheme of delegation requires a decision taken by officers under delegated powers to be recorded.

23. Mr McCracken bases the applicant's case four square on a duty which he says arises under Article 249 (formerly Article 189), and Article 10 (formerly Article 5) of the European Treaty. He relies on the wording in the third paragraph of Article 249 that a Directive shall be binding on each Member State "as to the result to be achieved". Taken together with the duty of a Member State under Article 10 to take "all appropriate measures" to ensure fulfilment of the obligations arising out of the Treaty, he submits that there is in this case a duty to achieve the result of an environmental assessment being provided before determination of the outline planning permission for the White City redevelopment proposal and that the appropriate measure to achieve that result is by revoking the existing outline permission pursuant to section 97 of the 1990 Act.

24. In support of that submission, reliance is placed upon Francovich v Italian Republic [1991] ECR 5357 where at paragraph 36 of the judgment, it is stated:

"A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty [now Article 10] under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law."

25. What is said in the present case is that there has been a breach of Community law by unlawfully granting outline planning permission without an environmental assessment as a result of the first respondent's failure to consider that matter properly under delegated powers and that, as a result, there is a duty to nullify the unlawful consequences of that breach of community law by revoking the outline permission, or at least considering whether to revoke it, so that the outline application can be properly determined.

26. Next, reliance is placed on Kraaijveld [1996] Env LR 265, in particular paragraph 55 of the judgment in that case where it is said:

".... it should be recalled that the obligation of a Member State to take all the measures necessary to achieve the result prescribed by a directive is a binding obligation imposed by the third paragraph of Article 189 of the EC Treaty and by the directive itself ...."

27. Mr McCracken particularly relied on the words "all the measures" as showing that it was not restricted to legislative provisions, but could also include administrative provisions.

28. Finally, reference was made to World Wildlife Fund v Bozen (unreported, Case C-435/97) where, at paragraph 71 of the judgment, it was said that Articles 4(2) and 2(1) of Directive 85/337/EEC are to be interpreted as meaning that

"Where the discretion conferred by those provisions has been exceeded by the legislative or administrative authorities of a Member State, individuals may rely on those provisions before a court of that Member State against the national authorities and thus obtain from the latter the setting aside of the national rules or measures incompatible with those provisions. In such a case it is for the authorities of the Member State to take, according to their relevant powers, all the general or particular measures necessary to ensure that projects are examined in order to determine whether they are likely to have significant effects on the environment and, if so, to ensure that they are subject to an impact assessment."

29. Mr McCracken relied on that passage, in particular to the reference to administrative authorities and measures, as showing that where there has been an administrative failure, and an environmental assessment has not been carried out, an individual citizen has a right to ask the court of a Member State to ensure that the administrative authority of the Member State takes the necessary measures to ensure that the decision taking process is properly carried out. Thus it is that Mr McCracken says that the first respondent now has a duty to revoke the outline planning permission in order to remedy its failure to decide properly whether there should be an environmental assessment, and that any domestic legal provisions, such as those relating to the timescale within which judicial review proceedings have to be brought, must be disapplied so as to ensure compliance with the obligations arising out of the Treaty. Reliance is also placed on the principle of equivalence in that if a domestic consideration such as the section 97 power of revocation is relevant, then it should also be relevant under European law.

30. Criticism is made of the way in which the first respondent considered the question of revocation. Reliance is placed on the description of it by Richards J, when granting leave on the revocation issue, as being nothing more than a summary refusal by the council officers to engage with section 97 at all. There was, it is said, a failure of the first respondent to consider the statements of European law in the cases to which I have referred, as well as a failure to consider two other matters: firstly, the decision in R v Secretary of State for the Environment and the Regions, ex parte Alnwick District Council (unreported, 4 August 1999), where the court upheld a decision of the Secretary of State to invoke his default power under section 100 of the Town and Country Planning Act 1990 to revoke a planning permission for a shopping development which he considered to be grossly wrong and damaging to the wider public interest. The relevance of that case is said to be that, in this case, there is harm to the wider public interest represented by the failure to achieve the result of the Directive, such that revocation of the planning permission is justified. It is also submitted that that case shows that past errors are material when considering the power to revoke. The second matter which, it is said, the first respondent failed to take into account is a statement of Government policy made by Mr Caborn, the Planning Minister, in February 1999 to the effect that need, as well as the absence of harm, has to be demonstrated for an out-of-centre shopping development which is not in accordance with an up to date development plan. It is submitted that the White City development is not consistent with the development plan due to the proposed scale of car-parking provision and that the development plan is out of date because it fails to deal with the question of need for a shopping development.

31. In my judgment the applicant's case, based as it is on the alleged duty derived from Articles 10 and 249 of the Treaty, is not well founded. Those Articles are designed to ensure, inter alia, that a Member State correctly implements a directive into its national law so that the result of the directive can be achieved. Directive 85/337/EEC was implemented into our national law by the 1988 Regulations. There is no suggestion that it has not been correctly implemented into the national law. In those circumstances, the question is whether there has been a breach of the 1988 Regulations. That is a matter of domestic law. It does not involve consideration of any breach of European obligations arising from the Treaty or from the Directive. The Directive has been correctly transposed into our domestic law by way of the 1988 Regulations in pursuance of the obligations arising under the Treaty. It is, of course, well established that the failure of a Member State to bring its law into line with Community legislation can give an individual an enforceable Community law right. It was held in Becker v Finanzamt Münster-Innenstadt (Case 8/81 [1982] ECR 1-53) that an individual can rely on a directive as giving him an enforceable Community law right where the Member State has failed to transpose, or has failed properly to transpose, a directive into domestic legislation and where the provision of the directive upon which reliance is placed is unconditional and sufficiently precise. Paragraphs 24 and 25 of the judgment in that case read as follows:

"24. Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.

25. Thus, wherever the provisions of a directive appear, as far as their subject matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or insofar as the provisions define rights which individuals are able to assert against the State."

32. In the absence of authority to the contrary, I would have held that an individual does not have an enforceable Community law right where those preconditions are not satisfied and that, once a directive has been correctly transposed into domestic legislation, an individual is thereafter confined to his remedies under the domestic legislation and no longer has an individually enforceable Community law right under the directive. There is now, however, a very recent authority on that point in a Court of Appeal decision delivered last week, to which Mr Ouseley QC, who appears on behalf of the second respondent, has helpfully drawn my attention. It is Marks and Spencer Plc v Commissioners of Customs and Excise (unreported, 14 December 1999), which was a case involving some overpayments of VAT made by Marks and Spencer to the Commissioners over a period of time in relation to teacakes and gift vouchers due to a mistaken view of the European law. One of the submissions made on behalf of Marks and Spencer in that case was that the fulfilment of the Becker conditions is not an invariable prerequisite for the existence of an enforceable Community right in respect of a directive and that it was open to them to assert rights springing from the relevant directive in that case, even when the directive had been correctly transposed into national legislation. Reliance was placed in that case on Norbrook Laboratories Ltd v Ministry of Agriculture Fisheries and Food (Case C-127/95 [1998] ECR 1-1531), a decision of the European Court of Justice, and Three Rivers District Council v Bank of England [1999] Eu LR 211, a decision of the Court of Appeal, as showing that, even after a directive has been correctly transposed into national legislation, the obligation of implementation is not limited to the legislative process but also includes the administrative process. Schiemann LJ, with whose judgment Stuart-Smith LJ and Ward LJ agreed, said at page 11 of the transcript:

"For my part, I do not consider that either Norwood or Three Rivers should lead this court to hold that an individual can sue for a breach of his rights under the sixth Directive once that Directive has, in all relevant respects, been accurately transposed into national law."

33. He went on to say at page 12:

"If what this submission is intended to convey is that an individual can continue to assert rights in the national courts under the Directive during such time as the Directive has been properly transposed, I would reject it."

34. He therefore concluded that each of the two Becker conditions must be fulfilled before a claim could be made on the basis of a right given by the directive in that case.

35. Having regard to that decision, I do not accept Mr McCracken's submission that an administrative measure, such as the power of revocation, can give rise to an enforceable Community law right after the directive has been correctly transposed into national law. In my view, once the directive is correctly transposed into the national law, an individual cannot continue to assert rights in the national courts under the directive. In this case, Directive 85/337/EEC, having been correctly transposed into national law by the 1988 Regulations, the applicant cannot rely on a Community law right derived from it in support of its case. The applicant's remedy is derived from domestic legislation for a breach of the 1988 Regulations. I do not, therefore, accept the applicant's case based on Articles 10 and 249 of the Treaty. Bearing in mind that the applicant's request to the first respondent to consider exercising the power of revocation under section 97 was based on Article 10 of the Treaty, it must follow that the first respondent was fully entitled to refuse that request.

36. That really is the end of the case. Indeed, Richards J only granted leave on the revocation issue in respect of the Community law point. However, in deference to the extensive submissions made by counsel on some other aspects of the case, I should briefly deal with one or two other matters. Even if I am wrong on the Community law point, the remedy pursued by the applicant must still be subject to any time limits imposed by the national law in order to safeguard the principle of legal certainty. In the European law context, that principle was accepted in Fantask (Case C-188/95 [1997] ECR 1-6783) where, at paragraph 48 of the judgment, it was stated:

"The Court has thus acknowledged in the interests of legal certainty, which protects both the tax payer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such period cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal in whole or in part of the action brought."

37. It was also dealt with in the case of Rewe-Zentralfinanz (Case 33/76 [1976] ECR 1989) where, at paragraph 6 of the judgment, it was stated:

"The answer to be given to the first question is therefore that in the present state of Community law there is nothing to prevent a citizen who contests before a national court a decision of a national authority on the ground that it is incompatible with Community law from being confronted with the defence that limitation periods laid down by national law have expired, it being understood that the procedural conditions governing the action may not be less favourable than those relating to similar actions of a domestic nature."

38. The position, therefore, is that the time limits imposed to safeguard the principle of legal certainty apply whether one is talking of a remedy based on a Community law right or based on a domestic law right. The reason for that principle was explained by Pill LJ in R v Newbury District Council, ex parte Chieveley Parish Council [1997] 10 Admin LR 676, when he said at page 690:

"A reason for that approach is that a planning permission is contained in a public document which potentially confers benefit on the land to which it relates. Important decisions may be taken by public bodies and private bodies and individuals upon the strength of it, both in relation to the land itself and in the neighbourhood."

39. That reasoning applies par excellence to this case where very important decisions have been made, interests acquired, and significant expenditure incurred on the basis of the planning permission that was granted in 1996.

40. It must be borne in mind that there is no challenge in this case to the substantive judgmental decision that an environmental assessment was not needed. The challenge is one of procedural irregularity, namely that the decision was not made by a person with delegated authority. The remedy for such an alleged procedural irregularity is that of judicial review of the decision taken without delegated authority. That decision was taken in 1993 and 1994 and, at the latest, by March 1996. The applicant was aware by October 1997 that it had been decided not to require an environmental assessment, yet the application for permission to apply for judicial review was not made until October 1999. In my view, the inclusion, in that application, of the refusal to revoke the outline planning permission in reality constitutes an avoidance of the time limits which relate to the substantive decision not to require an environmental assessment. That substantive decision affects the question of the validity of the outline planning permission but, as a result of the decision of Richards J and of the Court of Appeal, the validity of the permission and the resolution to approve reserved matters cannot now be challenged due to the inordinate delay in bringing these proceedings. There seems to me to be substance in the submission made on behalf of both the first and second respondents that this part of the application -- the revocation issue -- is really a back-door attempt to try and achieve what the court has already refused to do, namely to permit challenge to the validity of those planning decisions.

41. As Laws J (as he then was) stated in R v Secretary of State for Trade and Industry, ex parte Greenpeace [1998] Env LR 415, at page 424:

".... a judicial review applicant must move against the substantive act or decision which is the real basis of his complaint. If, after that act has been done, he takes no steps but merely waits until something consequential and dependent upon it takes place and then challenges that, he runs the risk of being put out of court for being too late."

42. In my view, the fact that it has been necessary to open up, on the revocation issue, some of the same matters as are also directly relevant to the validity of the planning permission is a clear indication that, in reality, the substantive matter that is in issue in these proceedings is the validity of the planning permission consequent upon its grant without an environmental assessment having been required by the first respondent. I consider that it would be inappropriate to sanction that kind of circumvention of the time limits which are particularly important in cases such as these where important decisions have been made and vested interests acquired since the date of the outline planning permission in March 1996.

43. A further indication of the unsatisfactory nature of this application arises from consideration of the practical consequences if it were right. Although, as the case went on, Mr McCracken tended to lean more in favour of the alternative argument of a duty to consider revoking, rather than a duty to revoke, the logic of the way in which the case was put suggests strongly a duty to revoke. However, the power to revoke under section 97 is only a power, not a duty, which is to be exercised if the planning authority consider it expedient to do so. This court could not order the first respondent to revoke the planning permission, thereby turning a power into a duty. If the first respondent were to make a revocation order, the second respondent (and probably others) would object to it. The order would have to be confirmed by the Secretary of State. The court could not order the Secretary of State to revoke the planning permission, nor could any declaration of this court bind him to do so. A part of his statutory duty is to consider any objections made to a proposed revocation order and it would be quite wrong for this court to make any order the effect of which would be to require him to make a revocation order in disregard of objections duly made to it. The highest that the applicant's case can be put is a duty to consider exercising the power to revoke. But in the event that the first respondent were then to decide in the exercise of its discretion not to revoke (which on the evidence would seem to be almost certain), the objective of the European obligation, which the applicant says exists, would not be achieved.

44. It follows from my conclusion that there is no duty under Articles 10 and 249 of the Treaty to revoke or consider revoking the planning permission that there is no need for me to decide whether or not Mr Pallace did have delegated power to decide whether an environmental assessment was required. Suffice it to say that that was the most arguable point of the appellant's case. Certainly there is no written record of such a delegated decision as is required by the scheme of delegation. However, even if there was not delegated authority, it is now far too late, for reasons that I have already given, to resurrect that as a reason for revoking the outline planning permission.

45. As I mentioned earlier in this judgment, it is also submitted that, when refusing the request to revoke the planning permission, the first respondent failed to take into account the Caborn statement relating to the need for the development. However, the reason given for the request to consider revocation of the planning permission in the applicant's solicitor's letter of 13 September 1999 was the alleged duty under Article 10 of the Treaty. Not only have I found that there was no duty under the Treaty to revoke or consider revoking the planning permission, but there was no mention of the Caborn statement in the request that was made. What was being requested was revocation due to the lack of an environmental assessment, not a general re-assessment of the planning merits of the development, including the question of the need for it. In my judgment, there was no duty on the first respondent to consider the Caborn statement in the context of the request for revocation that had been made to the first respondent.

46. Finally, I should say that, if I am wrong in the conclusions I have reached, I would nevertheless have had no hesitation in exercising my discretion to refuse relief for a myriad of reasons which, in the circumstances, it is not necessary for me to spell out in detail. Suffice it to say that to grant relief at this stage would, in my judgment, be detrimental to good administration, prejudicial to many parties, and would risk bringing the planning system into disrepute. The arguments in favour of granting relief are heavily outweighed, in my view, by those against granting relief.

47. It follows that, for all the reasons that I have given in this judgment, the application for judicial review must be dismissed.

48. MR DINKIN: My Lord, I ask your Lordship so to order and I ask for the first respondent's costs against the applicant.

49. MR STRAKER: My Lord, ask for costs on behalf of Chelsfield against the applicants. Would your Lordship wish me to develop that application at this stage?

50. MR JUSTICE HARRISON: I think in view of such authority as there is relating to two sets of costs, you had better do so.

51. MR STRAKER: My Lord, in that case can I develop it in this way? I would respectfully advance before your Lordship these two propositions in support of an order for costs in favour of Chelsfield. First, the nature of the case pursued was such, and the scale of the development is such, that Chelsfield, being bound to attend, are entitled to their costs. Second, Chelsfield in any event had a separate issue on which they were entitled to be heard and an interest requiring separate representation. I should add, so to speak in brackets after putting forward that proposition to your Lordship, that in fact, as your Lordship will recollect and will see in a moment from the Bolton authority, that Lord Lloyd only contemplates that one needs one of those, and I insert that both were present.

52. My Lord, the following factors support those propositions which I advance. The are these. First, the question of costs remains, notwithstanding, as your Lordship observes, some authority; it is a matter of discretion for your Lordship to exercise.

53. Second, the huge scale of the development, which was permitted and which was put at risk in consequence of this application, coupled with the fact that a large sum of money had been spent in pursuit of it. The figures are truly enormous.

54. Third, there would have been, had the application succeeded, huge prejudice to my clients of a character which your Lordship will have seen can be labelled "extremely substantial". Indeed, that was the phrase, as I recorded it, that Singer J used in giving the judgment of the Court of Appeal this morning. He also referred to the possibility of planning blight and that being perpetuated by the application.

55. My Lord, in this regard may I add these observations? Reference has been made in the course of the submissions to the fact that, had revocation occurred, Chelsfield would have been compensated. Your Lordship will recollect that that was spoken to by Mr Butler --

56. MR JUSTICE HARRISON: Yes, I do remember that. He said that there would not be full compensation from the nature of things -- matters which he mentioned.

57. MR STRAKER: My Lord, that is so, and one particular matter to bear in mind here is the question of the commercial reputation and the damage which would be suffered, which is a very significant aspect which would of course not be embraced by the compensation -- the relevant reference is page 119.

58. My Lord, furthermore, I would respectfully say that there was a lack of crystallisation as to the case of the applicants. My learned friend Mr Dinkin used the expression "a moveable feast". In particular, in connection with the issue of revocation, with which your Lordship was particularly concerned, there was a clear danger of a gap opening up as between the local authority and Chelsfield because of course it being said, "You, Chelsfield, will be compensated", or at an earlier stage it being said, "Well, of course, the local authority might be more interested the planning permission quashed so as to avoid the implications of compensation. That is referred to in the skeleton argument 2.2.1 and posed, as I respectfully indicate, a danger line which was apparent as far as this case is concerned.

59. My Lord, might I then draw those matters into the way in which the House of Lords considered the question of costs in a somewhat different context in the Bolton case.


61. MR STRAKER: My Lord, it can be observed of course that this was a somewhat different context in the sense that this was an appeal arising ultimately from an application under the Town and Country Planning legislation as opposed to an application for judicial review affecting the possibility of revocation of a planning permission. That is a distinction with an importance because of course in that context the Town and Country Planning Act context one would not ordinarily suppose that the large-scale investment would have occurred because one is simply concerned with challenge within six weeks and then everybody gets on with that rather than the development.

62. My Lord, if your Lordship then looks at the speech of Lord Lloyd, at page 1178 the relevant approach is recorded. Just below halfway down the page the fundamental rule that there are no rules is recorded, costs being in the discretion of the court. There is then the first proposition which deals with the Secretary of State. Then the second, the developer is not normally entitled to his costs unless he can show that there was likely to be a separate issue on which he was entitled to be heard, that is to say an issue not covered by counsel for the Secretary of State.

63. My Lord, here I would identify that by the label "prejudice". Prejudice was particularly a matter within the scope of Chelsfield and upon which they gave your Lordship substantial evidence. In regard to this application for judicial review, if one wants to put it in a compendious way and say that an application for judicial review is an assertion that there has been a prejudicial error of law, on the question of prejudice it was Chelsfield who from the point of view of not making an order was important and entitled to be categorised as a separate issue.

64. My Lord, then Lord Lloyd speaks about the alternative unless he has an interest which requires separate representation. If your Lordship then looks over the page to 1179, the first complete paragraph on that page begins: "On the facts of the present case...." The question was whether the Manchester Ship Canal Company, which was the developer in that case, should also receive their costs. Lord Lloyd said that in his opinion they should. He accepted that the issues were all capable of being covered by counsel for the Secretary of State, so if they are going to qualify -- that is to say the canal company are going to qualify -- it must be on the basis of an interest requiring separate representation.

65. Then he goes on "a number of special features", and the first was a feature about the Secretary of State supporting his decision and defending his wider policy and he had to remain aloof from the parties. My Lord, in this instance plainly I would respectfully say there is a special feature in the sense that this is a revocation challenge of a character which I have described. Secondly, as part of the interest to be capable of requiring separate representation, the scale of the development and the importance of the outcome for the developers were both of exceptional size and weight. That is plainly the position here. Then the unusual case -- unusual case also here, I would respectfully contend; this is not a situation where the developers were (if one can properly use this adverb) merely facing remission for the matter to be considered again of planning permission being set aside, as sometimes occurs, but they were facing revocation with the uncertain future that might bring, coupled with the possibility of a reference to Europe.

66. At page 1179 -- my learned friend refers to the third feature -- "This was an unusual case in the sense that the opposition came not from the local authority but from the neighbouring authority supported financially by a consortium of major commercial interests."

67. My Lord, your Lordship will also have observed perhaps in passing, but perhaps on a previous occasion as well, that if one goes back to 1178 Lord Lloyd referred to the second set of costs to be more likely to be awarded at first instance than in the Court of Appeal or House of Lords, by which time the issues should have crystallised, which is why I used that particular word when describing the feature which here existed, namely what I have described as a "lack of crystallisation" or my learned friend Mr Dinkin's "moveable feast".

68. MR JUSTICE HARRISON: That reference to the Court of Appeal, although I know we are not talking about it in relation to the revocation issue, but am I right in thinking that in the Court of Appeal on the renewed application the question of costs was dealt with, and am I right in thinking that the Court of Appeal did not award a second set of costs against the applicant?

69. MR STRAKER: Your Lordship is absolutely right in thinking that, and it is right for me to add this. It was not recorded in Singer J's judgment, but it was expressly stated by Swinton Thomas LJ when the court returned, having considered the submission made by my learned friend Mr Ouseley that costs should be paid to Chelsfield for the Court of Appeal. Swinton Thomas LJ gave a short judgment which is not recorded and has not been transcribed, to this effect: the Court of Appeal said that they had been greatly helped by Mr Ouseley's submissions; that they were not persuaded to grant costs to Chelsfield; but that the approach they took with regard to costs was not to be taken in any way as influencing the exercise of discretion by your Lordship at the moment at which we have now arrived.

70. MR JUSTICE HARRISON: Yes, I see. Thank you very much.

71. MR STRAKER: My Lord, finally I hope I can say this. Normally one would eschew such remarks out of modesty, but not having made the submissions to your Lordship I trust that I am allowed to make such a remark. In my respectful submission, we were here able to help your Lordship in connection with these matters. Particularly, your Lordship was able to take advantage of our ability to refer to the Marks and Spencer case which came through to us -- credit falling where credit should be due -- via our instructing solicitors and the solicitors for Chelsfield. My Lord, I make those remarks -- normally one would be affected by modesty from making those, but not having made the submissions to your Lordship, I make it.

72. My Lord, in my respectful submission, therefore, those propositions which I advanced to your Lordship about the character of this case and the ability here to recover costs are borne out and in my respectful submission your Lordship ought to make an order for costs in favour of Chelsfield.

73. MR JUSTICE HARRISON: Thank you very much, Mr Straker. Mr McCracken?

74. MR McCRACKEN: My Lord, I shall take a moment or two to deal with the applications for costs because, as I am sure your Lordship appreciates, it is a matter of very considerable importance to my clients.


76. MR McCRACKEN: I would like, if I may, at the outset just to remind your Lordship of something with which I am sure he is now very familiar, but which nonetheless ought to make a real change to the way in which the courts approach the question of determining costs, and it is to refer your Lordship to the overriding objective of the new Civil Procedure Rules. In particular that provides that dealing with a case justly includes so far as it is practicable (c) dealing with cases in ways which are proportionate and fair as to the financial position of each party. I accept that there are other considerations set out.

77. MR JUSTICE HARRISON: Is that dealing with costs after the event or how you deal with the case so as to seek to ensure that one side does not have to incur a disproportionate amount of costs.

78. MR McCRACKEN: My Lord, whatever the primary object of that provision, the consideration must be material when it comes to exercise a discretion as to costs. While I accept that it may well be that that objective is primarily directed towards avoiding situations perhaps in which litigants have to incur more expense than they would wish to in the disposal of the matter, nonetheless the relevance of the financial position of each party is something which is expressly acknowledged.

79. It is interesting that 1.2 of the Civil Procedure Rules provides as follows: "The court must seek to give effect to the overriding objective when it exercises any power given to it by the rules or interprets any rule."

80. Now, the awarding of costs at the conclusion of the case is in a sense is one of the powers given to the court by the rules. So there are, as it were, three bases upon which I can invite your Lordship to have regard to the financial position of my clients. The first is that insofar as costs are at the discretion of the court, the court is capable and ought to have regard to factors such as the financial position of a litigant. Second, CPR 1-2(?) expressly as it were applies the overriding objective in relation in my submission to decisions as to costs. Thirdly, even if it did not do so by incorporating by reference, in any event the identification of the financial position as a material consideration for the exercise of other powers of the court would indicate that it was something to which under the new regime importance should be attached. So there are three ways in which I would submit that the financial position of my clients is relevant.

81. Your Lordship will see from page 19 of Bundle A --

82. MR JUSTICE HARRISON: Page 19 of Bundle A?

83. MR McCRACKEN: Yes, my Lord. It is the affidavit of Mr Bourn. He says at the top of page 19: "However as an organisation it will be very difficult for us (without external support) to continue this litigation if we become liable for any of the other side's costs." He was there making an unsuccessful attempt to have a pre-emptive costs order and of course in the event his organisation was able to raise sufficient funds to deal with the costs as estimated by Mr Dinkin at the leave hearing in front of Richards J, where Mr Dinkin's estimate was £7,500, I think, for just a straightforward leave followed by a hearing.

84. My Lord, I would like to deal separately with the second respondent's costs and the first respondent's costs.

85. MR JUSTICE HARRISON: Are you disputing that you should pay the first respondent's costs?

86. MR McCRACKEN: My Lord, I am, for reasons which I will come to later. May I deal with the second respondent's costs first, or would your Lordship prefer me to --

87. MR JUSTICE HARRISON: No, whichever way you like.

88. MR McCRACKEN: My Lord, can I deal with the second respondent's costs, first of all? The starting point is set out at page 1178H of Bolton where Lord Lloyd says: "The developer will not normally be entitled to his costs." So that is the starting point, in my submission.

89. The matter is developed further in the case of Berkeley, and I will ask that copies of that be handed to your Lordship.

90. MR JUSTICE HARRISON: Thank you very much.

91. MR McCRACKEN: My Lord, that was a challenge to planning permission granted after an inquiry into a (inaudible) application. There are two parts of this which are relevant. Can I invite you to note a passage on page 5 to which I shall return when I am dealing with the first respondent's costs? But can I ask you to turn on to page 6 to deal with the second respondent's costs? Nourse LJ quotes from the Bulgian(?) case and then he goes on: "Mr Hicks submits that the club qualifies for orders for costs here and below within those principles. He has made a number of points. In regard to the environment assessment question he has said that the club, having been throughout represented and fully involved at the public inquiry, was uniquely able to assist the judge as to the information available at the inquiry in order to help him decide whether, in the absence of an environmental statement, there had, as has since been held, been sufficient information available to take its place. He has made a similar point in regard to the policy question. His third principal point is that it was recognised ahead of the hearing before the judge that the Secretary of State was unlikely to argue the question whether there had been an urban development project. The club, on the other hand, intended to submit and did submit that there was no definition of that expression and further development of the place could not be so described."

92. There then follows a key passage: "Putting that third point on one side, I think Mr Hicks' submissions amount to no more than that it would be and could be expected to be, as it no doubt was, very helpful for the club to be represented before the judge. They knew all about the inquiry at which of course the Secretary of State had not been represented. While I am entirely clear that the club was entitled to be represented before the judge -- indeed, subject to the question of costs their application for joinder was not resisted by Lady Berkeley -- I am nevertheless able to conclude that they had been able to demonstrate a separate issue not covered by the Secretary of State on which they were entitled to be heard or an interest requiring representation. I can see that the question of the urban development project could be described as a separate issue not covered by the Secretary of State, but that does not appear to me to have been in the context of the case as a whole sufficient ground for the club to be represented as well as the Secretary of State. As a matter of discretion therefore, and we are not exercising a discretion afresh, I do not think it would be right within the principles of the Bolton case to make an order for costs in favour of the club at first instance and a fortiori it would not be right to make such an order here."

93. My Lord, one point emerges very clearly from both the Bolton and the Berkeley case. The fact that one is a developer or a would-be developer of the site does not justify an award of costs to a second respondent.

94. The second point is: the mere fact that a second respondent is able to help the court does not justify an award of costs to him. That is illustrated by the way in the Berkeley case, although the second respondent's counsel was the only one who had knowledge of what had happened at the inquiry and he could therefore assist the court in that way, he still did not get his costs.

95. The next point that, in my submission, needs to be made in relation to that is that the would-be developer would always suffer prejudice if the permission is struck down. So the mere fact that the second respondent will suffer prejudice cannot be a reason for giving him costs. It is noteworthy that Mr Dinkin in his skeleton did pray in aid the prejudice that would be caused -- we see it at the top of page 7 of his skeleton -- it is not surprising that in the event he left it to Mr Ouseley to develop that argument because, as Mr Ouseley was here, it was plainly sensible to leave it to him to develop.

96. MR JUSTICE HARRISON: Where is this dealt with, do you say?

97. MR McCRACKEN: At the top of page 7, my Lord.

98. MR JUSTICE HARRISON: Page 7. Thank you.

99. MR McCRACKEN: My Lord, this is a case in which, in truth, there was no separate interest or separate issue.

100. So far as crystallisation is concerned, when one reflects upon the concept of crystallisation, this is a case where in some strange ways we are rather akin to the position of an appellate court because we have had a degree of crystallisation at the leave stage and a further degree of crystallisation as a result of the Court of Appeal hearing.

101. MR JUSTICE HARRISON: What is this crystallisation point?

102. MR McCRACKEN: Crystallisation is a point relied upon by Mr Straker, my Lord. He said, relying on Lord Lloyd's speech at page 1178I, Lord Lloyd said at the third point on page 1178 in Bolton: "A second set of costs is more likely to be awarded at first instance than in the Court of Appeal or the House of Lords --"

103. MR JUSTICE HARRISON: I see, yes.

104. MR McCRACKEN: "-- by which time the issues should have crystallised. Mr Straker was seeking to suggest that in this case the issues have not crystallised and therefore he ought to have his costs. But in my submission the process of application for leave -- the hearing for leave and the Court of Appeal hearing subsequently -- has indeed crystallised the issues. Now, Mr Straker seeks to pray in aid the large sum of money involved. In my submission, perhaps that is an argument that could have swayed the Court of Appeal and might have been found by them to be important at the stage when the second respondents were running the risk of losing the value of their planning permission. But, of course, in relation to revocation they have not been running the risk of losing the value of the permission. The statute provides for full compensation for any loss or damage they suffer as a result of a revocation. Your Lordship will remember the provision that I took your Lordship to in subsection (4).


106. MR McCRACKEN: So there is even less reason for the second respondents to have their costs here than there would have been in the Court of Appeal. Now, Mr Straker made the point that the Court of Appeal were minded to the view that his clients would suffer extremely substantial prejudice and that that was one of the factors that led them not to grant permission. That may be, but it also was not a factor which caused the Court of Appeal to feel that they ought to award costs to the second respondents. So no more should it lead to an award of costs in this court.

107. So far as the ability to help is concerned, of course everyone appreciates the help given by counsel in a case like this, just as the Court of Appeal appreciated the help given by Mr Hicks in the Berkeley case. At page 7 I concede the Court of Appeal acknowledged the help that the second respondents had given in that case. The particular instance that Mr Straker chooses, that of the Marks & Spencer decision, that in a sense perhaps illustrates the weakness of the argument being advanced for a separate set of costs for the second respondent because plainly the second respondents would have been perfectly able to make that authority available to the first respondent and the first respondent's team could have advanced that argument in the same way as the first respondent's team could have used all the affidavit evidence that had already been submitted in the proceedings and had been before Richards J and indeed the Court of Appeal. The mere fact that a party's witnesses produce material, the party producing the material does not justify a separate set of costs.

108. My Lord, my primary purpose in addressing you at some length is to submit to your Lordship to submit to you that there is no separate issue or separate interest which justifies a second set of costs.

109. In relation to the first respondents, my Lord, can I take you to a passage at paragraph 5C of the Berkeley case? "So in my judgment the normal order for costs ought to be made in favour of the Secretary of State subject to points. The first and important one, I repeat that this court has held that the Secretary of State is in breach of his obligation under Regulation 4(2) of the Regulations. Although in the end it has not affected the outcome of the proceedings, it is a matter of which it is proper for the court to take account in considering an award of costs. It is appropriate for the court, which has its own interests in preserving the high standard of civil administration that we expect in this country, to make its disapproval of that breach by declining the Secretary of State to a proportion of his costs, although only in the court below."

110. MR JUSTICE HARRISON: What was the breach by the Secretary of State which was disapproved of there?

111. MR McCRACKEN: Failing to consider whether or not there ought to be environmental assessment. It was in a sense almost exactly the same as the failure that was alleged in this case.

112. MR JUSTICE HARRISON: I think the first respondent would probably say that, according to their evidence, they did not fail to consider whether or not there was one, your point being a delegated authority point relating to the decision.

113. MR McCRACKEN: Well, my Lord, yes. I appreciate that your Lordship has held against me, but, although your Lordship has held against me, one thing that is abundantly clear from the case is that even if Mr Pallace did have delegated authority, he plainly failed to comply with the requirement to record in writing. It was not merely a mistake that was made, and in a frank fashion acknowledged because we see, for example, at page 59 of the bundle the council have always maintained that they fully complied with the requirements. So on any view there has been a departure from the standards of good adminstration and not merely in the failure to record. Perhaps that would be forgivable. It is the failure to acknowledge afterwards. That is something of which, in my submission, it would be right for the court to mark its disapproval of in any award of costs. So, my Lord, I would invite you in relation to the second respondent to hold no separate issue or interest in relation to the first respondent to mark the court's disapproval of the approach towards the point he seeks.

114. MR JUSTICE HARRISON: Thank you very much. Is there anything you want to say, Mr Dinkin?

115. MR DINKIN: No, my Lord.

116. MR JUSTICE HARRISON: Is there anything you want to say, Mr Straker?

117. MR STRAKER: My Lord, only this, if I may, that following the hearing in front of Richards J the solicitor for the CPRE was put expressly on notice that our position as to costs was reserved by a letter of 3 November 1999, which your Lordship might have come across in the bundle, so that the position was one whereby there was an opportunity for reflection as to whether they wished to pursue this particular risk which they were running in respect of costs. That was made plain and of course, as your Lordship will know, the mere fact that one is permitted to launch judicial review is no compulsion to pursue that judicial review.

118. My Lord, the other matter of which I have been reminded is this. Your Lordship enquired about what the Court of Appeal said as to costs and Swinton Thomas LJ in that short ex tempore judgment, of which I gave your Lordship a reference, indicated that the matter had been finely balanced as far as they were concerned and then went on to make the remarks about your Lordship's discretion.

119. MR JUSTICE HARRISON: Thank you very much. Dealing first with the second respondent's request for their costs to be paid by the applicant, I am uninfluenced by the order made on the renewed application to the Court of Appeal, but, strangely enough, I do find myself in the same position as the Court of Appeal insofar as I think this issue is finely balanced. It was something that was already in my mind before Mr Straker mentioned it. Mr Straker submits that the applicant should pay the second respondent's costs, based primarily upon the case of Bolton Metropolitan District Council v Secretary of State for the Environment [1995] 1 WLR 1176. In particular, he relies upon the assertion that the second respondent had a separate issue on which they were entitled to be heard, namely the prejudice that would be caused to them by the applicant being successful in these proceedings, and also he asserts that they had an interest which requires separate representation. He draws attention to the scale of the development and the importance of the outcome to the second respondent, all those matters being referred to by Lord Lloyd in his speech in Bolton.

120. Mr McCracken, on the other hand, submits that the second respondents do not have a separate interest; nor is there a separate issue on which they are entitled to be heard. He draws attention to the applicant's financial position both in relation to the exercise of my discretion and in relation to the overriding objection under the Civil Procedure Rules.

121. The starting point must, I think, be that the general rule is that a developer will not be entitled to his costs. A developer will always be at risk of suffering some prejudice, but it is certainly true to say that in this case the potential prejudice was very great indeed.

122. I am not persuaded that the second respondent had an interest that required separate representation beyond the extent that a developer always likes to be separately represented in case the local authority does not cover some of the points that they would like them to cover. I do not think that the point relating to a possible gap opening up between the local authority and the second respondents is such as to enable me to say that they had an interest which required separate representation.

123. In the end, the matter is one of discretion for me to decide. As I have said, I find this a finely balanced decision, but, in the end, I have come to the conclusion that it would not be appropriate to award the second respondents their costs of these proceedings. Therefore I decline to make the order sought.

124. Turning to the first respondent's costs, the submission made by Mr McCracken on behalf of the applicant, based upon a passage in the judgment of Nourse LJ in Berkeley v Secretary of State for the Environment v Fulham Football Club, is that I ought to mark the court's disapproval of the behaviour of the first respondent, firstly, in failing to record in writing the delegated decision, and, secondly, in failing to acknowledge that failure afterwards.

125. Whilst I understand the point being made by Mr McCracken, I am left in no doubt that that is not a matter which is sufficient for me to come to a conclusion that the first respondents should not be entitled to their costs. Nor is it sufficient for me to decide that there should be a reduction in some part of the first respondent's costs. The order that I make, therefore, is that the applicant will pay the first respondent's costs, but not the second respondent's costs.

126. Are there any other consequential matters?

127. MR McCRACKEN: My Lord, there is just the question of leave to appeal. As your Lordship knows, the current rule makes it necessary for a litigant to make an application for leave to appeal before having decided whether that is a course of action that is going to be pursued. Your Lordship has made quite an important interpretation of Article 10 and its relationship to 189 and so on. I of course appreciate the significance of the recent Court of Appeal decision in the Marks and Spencer case played in your Lordship's decision. There is of course no reason for your Lordship to refer a matter to Europe, even if it is central to your Lordship's decision because it is only a final court that has any such obligation. But bearing in mind that the way in which Article 10 bears upon the exercise of powers that the administrative authorities of England and Wales have, my Lord this is a matter upon which, in my submission, it would be right that your Lordship should grant leave to appeal. Therefore I make that application.

128. MR JUSTICE HARRISON: Thank you very much, Mr McCracken. Are there any submissions that either counsel want to make on that?

129. MR DINKIN: My Lord, may I say very briefly that I resist it. I invite your Lordship not to grant leave. At the end of the day, your Lordship has essentially said the matter boiled down to a domestic law point, not a European point, and, my Lord, I would respectfully submit that in all the circumstances here it is not a case in which it would be appropriate to grant leave. So I ask your Lordship not to do so.

130. MR JUSTICE HARRISON: Is there anything you want to say, Mr Straker?

131. MR STRAKER My Lord, I endorse what Mr Dinkin has said.

132. MR JUSTICE HARRISON: Thank you very much. Mr McCracken, I am not prepared to grant leave to appeal, so you will have to go to the Court of Appeal if you wish to obtain it.