R. v. Waveney District Council exp. Bell

Transcript date:

Thursday, August 24, 2000



High Court

Judgement type:



Sullivan J




Royal Courts of Justice


London WC2

Thursday, 24th August 2000

B e f o r e


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R e g i n a




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Computer-Aided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

190 Fleet Street, London EC4A 2AG

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MR DOUGLAS EDWARDS (instructed by Richard Buxton, 40 Clarendon Street, Cambridge CB1 1JX) appeared on behalf of the Applicant

MR JONATHAN MILNER (instructed by Waveney District Council, Town Hall, High Street, Lowestoft, Suffolk NR32 1HS) appeared on behalf of the Respondent

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(As approved by the Court)

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1. MR JUSTICE SULLIVAN: This is an application for judicial review of a resolution of Waveney District Council which was made on 25th January of this year to grant conditional planning permission to Midal Commercial Developments Limited and Clays Limited for the construction of a new printing works on land at Stow Park, near Bungay, in Suffolk. Outline planning permission was granted on 23rd March of this year. The application for permission to apply for judicial review is dated 3rd March, that is to say a little over five weeks after the date of the resolution to grant planning permission.

2. The primary grounds of challenge to the validity of the resolution were based upon the applicant's contentions that the Council had failed to comply with the mandatory requirements of the Town and Country Planning Environmental Impact Assessment Regulations of 1999. To put the matter very shortly, it was submitted that there was no valid environmental statement because the document which purported to be an environmental statement contained no information about the design of the development. That flowed from the fact that the environmental statement was based upon and described a bare outline application.

3. On behalf of the respondent Local Authority Mr Milner has very properly conceded that there was a breach of the Regulations. It follows that the Council did not have power to grant the planning permission that was granted on 23rd March. Nevertheless he submits that I have a discretion as to whether or not to quash the grant of permission. He submits that I should exercise that discretion and not quash the permission on the ground that there was an undue delay in challenging the resolution of 25th January and there has been prejudice to good administration as a result.

4. Before considering the questions of delay and prejudice to good administration it is relevant, in my view, to consider the nature of the breach of the Regulations. Plainly, the gravity of the breach must be material to the exercise of discretion. In my judgment this could not possibly be described as a trivial breach of the Regulations. There was a substantial failure to comply with the requirements of the Regulations. To put the matter bluntly, there simply was no information about the design of a proposed building. Thus, the document that was produced could not possibly be described as an environmental statement within the terms of the Regulations.

5. The second matter which it seems relevant to consider is that the Council proceeded to resolve to grant planning permission notwithstanding the clearest possible warning that had been given on behalf of the applicant that such a course would be unlawful as being in breach of the Regulations. The warning is plainly set out in a letter of 21st January. I find it surprising that in the face of the warning in that letter the Council chose to proceed as it did.

6. Turning to the next aspect of the matter: what is the ambit of the court's discretion to refuse to quash a planning permission that has been granted in breach of the Environmental Assessment Regulations? It is plain from the speech of Lord Hoffmann - in the case of Berkeley v Secretary of State for the Environment, reported in 3 WLR [2000] at page 420 - that the ambit of the court's discretion is very narrow indeed. As Lord Hoffmann said on page 431 at letter F-H:

"In classifying a failure to conduct a requisite E.I.A. for the purposes of section 288 [that is of the Town and Country Planning Act 1990] as not merely non-compliance with a relevant requirement but as rendering the grant of permission ultra vires the legislature was intending to confine any discretion within the narrowest possible bounds. It is exceptional even in domestic law for a court to exercise its discretion not to quash a decision which has been found to be ultra vires: see Glidewell LJ in Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343, 353."

7. I approach the exercise of my discretion against that general background. Mr Milner has cited in support of his submission that this application should be refused on the grounds of delay a number of decisions in the planning field. It is right to observe at the outset that in none of them was the court being invited to exercise its discretion on the ground of delay in respect of a planning permission which the court had concluded was ultra vires as a result of a failure to comply with the Environmental Assessment Regulations. The closest one comes is the recent decision of the Court of Appeal in the R v London Borough of Hammersmith and Fulham ex parte Trustees of the CPRE London Branch (a transcript dated 21st December last year). That was a renewed application for permission to apply for judicial review of a number of decisions that had been made by the respondent Council. The Court of Appeal refused the renewed application. The question of delay and prejudice was dealt with against the background that the court was not satisfied that there had been a breach of the Regulations.

8. So far as the questions of delay and prejudice are concerned the CPRE case is nevertheless useful because it is in such stark contrast to the facts of the present case. In the CPRE case the delay was measured not in weeks, not even in months, but in years. Moreover, there was very substantial prejudice. As was explained in paragraph 37 of the decision, the first contact had started in November 1997. Complaints had been made in October 1997. Seventeen months later it had been intimated to the Local Authority that there might be judicial review proceedings. Seven more months elapsed before the proceedings were commenced. That is in stark contrast to the facts of the present case. Moreover, the court heard evidence of the scale of the potential prejudice and was satisfied that it was substantial. The developer was represented by leading counsel before the court. (It is to be noted in the present case that the recipient of the planning permission although notified of this application has not thought it necessary to attend.)

9. Whilst it is perfectly true that there are numerous authorities which emphasise the need for the utmost promptitude in challenging a grant of planning permission, that requirement should not be considered as an abstract ideal divorced from the facts of the particular case. The purpose of requiring the utmost promptitude in planning cases is so that there is not prejudice to third parties who might for example be entering into contractual arrangements. There is prejudice to good administration if members of the public rely upon public decisions and perhaps take actions or abstain from taking actions to their detriment.

10. In the present case, apart from the fact that negotiations continued with a view to agreeing a section 106 agreement, and the preparation of details of reserved matters continued, there has been no evidence of any specific prejudice of any kind beyond that which would normally be expected if a recipient of a planning permission found that it was subsequently quashed. Nor has there been any evidence of any specific prejudice to good administration beyond the assertion that any delay will inevitably involve some measure of prejudice to good administration. I add, it is difficult to see on the facts of the present case how it could sensibly be argued that there was any significant prejudice during the five or so weeks following the grant of the resolution.

11. The Court of Appeal in the CPRE case referred to a number of authorities including R v Exeter City Council ex parte JL Thomas & Co. Ltd [1991] QB 471. In that case Simon Brown J (as he then was) had stressed the crucial need in planning cases for applicants to

12. "proceed with the greatest possible urgency." It will be found that the background to those observations was that practical consequences had indeed flowed from the delay in terms of commitments entered into and actions taken by the recipient of the planning permission.

13. Mr Milner referred to the decision of R v Swale Borough Council ex parte RSPB, a decision of Simon Brown J (as he then was) reported in [1991] 1 PLR at page 6. The delay in that case was between 16th August 1989 when permission was granted and November 1989. Again, the observations in relation to delay should not be looked at in the abstract but against the background of that case. That background included the fact that quashing the permission would result in substantial financial prejudice. Very considerable expense would be incurred in terms of having to dump dredgings at sea rather than upon the site in question. Very large sums of money in terms of demurrage charges and so forth were identified in evidence before the court. The decision emphasises that where there is undue delay some explanation ought to be given.

14. It is pointed out that there is no explanation as to why the Form 86A in the present case was not prepared earlier than it was. In my judgment there was no obligation in the circumstances of this case to provide such an explanation. The resolution is dated 25th January. The grounds in the Form 86A are substantial. A significant number of documents had to be assembled and collated in appropriate form. Thus I simply do not accept the proposition that there was unacceptable delay, or that there is any evidence that the applicants simply sat back on their hands and waited for a while and then decided that it might be a good idea to apply for judicial review.

15. A number of the other cases referred to by Mr Milner are plainly distinguishable upon their facts because they involve challenges by commercial rivals to planning permissions granted to other commercial organisations. I refer to R v Leicester City Council and WM Morrison Supermarkets Plc and Powergen UK Plc ex parte Safeways Stores [1999] JPL 691, and R v Breckland District Council ex parte Budgens Stores Limited [1999] JPL at page 85. In both of those cases there was effectively a commercial challenge. Not only would the commercial challenger be well aware of the commercial imperatives, for example in terms of activities that might occur during the Christmas period, they would also be well familiar with the procedures, and in financial terms well able to muster the big battalions on their behalf.

16. That is not the case with this application. This challenge has been mounted by a number of concerned local individuals. Simply on the facts they should not be treated in the same way as a powerful commercial challenger in deciding whether or not there has been undue delay. That would be to ignore the reality of factors such as financial and other resources.

17. Mr Milner also referred to the case of R v Ceredigion ex parte McKeown [1998] 2 PLR at page 1. In that case the application had been lodged one day before the expiry of the three-month period. It was plainly a case where the three-month period was being regarded as a time limit that could be used up at the option of the applicant. Laws J (as he then was) said that it was:

"...nearly impossible to conceive of a case in which leave to move for judicial review will be granted to attack a planning permission when the application is lodged more than six weeks after the planning permission has been granted."

18. He explained his reasons for reaching that conclusion. This application was launched by a group of local residents in a substantial case within the six-week period.

19. Finally, there is the decision of Dyson J in R v Stoke on Trent City Council ex parte Trent City Securities Ltd (dated 17th February of this year). That was an application for permission to apply for judicial review of a planning permission granted for the erection of an exercise and rehabilitation clinic. Dyson J, concluded that there was an arguable point that the Council had approached the policy in PPG6 incorrectly but concluded that the application should be refused on the ground of delay. The delay in that case was 6 weeks. The application had been made at the end of the sixth week after the decision was taken and there had not been any explanation.

20. It may well have been appropriate to seek an explanation in that case where a challenge was being made on relatively simple grounds to the grant of a relatively modest planning permission. In my judgment, on the facts here, given the nature of this permission and nature of the issues involved, including the importance of the Environmental Assessment Regulations, there really is no warrant for seeking an explanation. It is readily understandable why it took a little over five weeks in order to prepare this Form 86A on behalf of these local residents. So I make it absolutely clear that I am not satisfied that there has been any undue delay. Even if I had been so satisfied, I am not satisfied that there is any significant prejudice that has been caused by such delay as there might have been. Even if there had been evidence of such prejudice it would, in my view, be wholly inappropriate to refuse to grant relief given the grave breach of the Environmental Assessment Regulations.

21. For all of those reasons it follows that this application must be granted and the planning permission quashed.

22. MR EDWARDS: I am much obliged, my Lord. The only outstanding matter, as far as I am concerned, is the question of costs. I would ask that the respondent pay the applicant's costs in this matter?

23. MR JUSTICE SULLIVAN: Can you resist that in principle?

24. MR MILNER: I cannot.

25. MR JUSTICE SULLIVAN: Then you have an order for your costs.

26. MR EDWARDS: In the light of the fact that the case has lasted well under a day, my submission is that it is appropriate for summary assessment. A schedule of my instructing solicitor's costs, my client's costs, was sent to the court yesterday and to my learned friend's instructing solicitors.

27. MR JUSTICE SULLIVAN: I think I have it somewhere. I saw it. I do not pay too much attention to these until the end.

28. MR EDWARDS: My Lord, the schedule says what it says. It includes the fees or the expenses incurred by my instructing solicitor and counsel's fees, and various other expenses. The grand total comes to £28,852.37.

29. My Lord, I should draw attention to one particular matter - that is the third bold reference on the schedule - and that is the litigation cost insurance. My Lord there set out is a figure of £5,775 exactly. My Lord, that is the insurance premium. My Lord, in light of the changes to the rules, effected by the Administration of Justice Act 1999, the court is now empowered, in an appropriate case, to award the insurance premium that was incurred by the successful party. So, my Lord, in addition to the base costs - that is solicitor's fees, counsel's fees and other expenses - we also ask for an order that that £5,775 be paid.

30. MR JUSTICE SULLIVAN: Is that included in the £28,000?

31. MR EDWARDS: It is, my Lord, yes. But I draw your Lordship's attention to it as a discrete matter.

32. MR JUSTICE SULLIVAN: Yes, thank you. What do you want to say about that, Mr Milner?

33. MR MILNER: Well, my Lord, the first thing I draw your Lordship's attention to is the great disparity between the two sets of costs. It is my submission that the applicant's costs are excessive and require some investigation. The differences is so enormous.

34. MR JUSTICE SULLIVAN: Are you submitting that it ought to go to detailed assessment?

35. MR MILNER: I am, my Lord. It ought to go to a detailed assessment. The items are not dated. It is not easy at a glance to see what they are referrable to. Plainly the costs involve the preparation of a bundle but one sees from the contents of it that contained about seven or eight documents which were not difficult to put together. So, my Lord, it is my submission that this does need some careful scrutiny.

36. MR JUSTICE SULLIVAN: Yes. Counsels' fees are broadly similar. I do not say this in any critical sense but it is obvious that there is an enormous difference in terms of solicitor's costs. It could be the case obviously that an applicant has to put in a vast bundle and so forth and all the respondent does is to sit back and comment on the documents. But I do not think the respondent did do that in this case. There is a pretty substantial amount of evidence being put in by Mr Woolley.

37. MR MILNER: Indeed. Of course one has to read the documents lodged and then decide what if----

38. MR JUSTICE SULLIVAN: Yes, of course, I see that.

39. MR MILNER: Mr Woolley put in two statements, even so the costs are less than a quarter.

40. MR JUSTICE SULLIVAN: Yes. Mr Edwards, I confess to a degree of unease, I am not saying this in any critical sense, about the figures. They may be entirely justified, it is just that it is a large sum in terms of a summary assessment in respect of a day's case. I do not seek to imply anything by that, in terms of it not being a proper figure or anything like that at all. I do emphasise that. So subject to any submissions you may make, my instinct is it ought to go for detailed assessment. That is not to imply that I had doubt about the figure as such, it is simply that I feel it would not be fair to the Council for me to try to resolve it on the hoof, as it were.

41. MR EDWARDS: My Lord, I appreciate the observations both your Lordship and my learned friend make. Can I indicate my instructing solicitor was very surprised in the extreme at the very modest level of costs that the Council incurred.

42. MR JUSTICE SULLIVAN: Actually I am too. Certainly that in a sense is as surprising as the other way. It is just that there is such a huge discrepancy that I am bound to say I do not feel that it would be fair to try to resolve it, as I say, on the hoof now.

43. MR EDWARDS: My Lord, I am not going to pursue that matter any further. I leave it with your Lordship. Can I just raise one discrete matter? My understanding of the rules in relation to the litigation insurance is that it does require a decision by your Lordship, I believe in principle, as to whether it is appropriate that that sum be recovered. So I would invite your Lordship, if you might -- then it is appropriate to dispense of that order and then refer the matter to a detailed assessment.

44. MR JUSTICE SULLIVAN: Just by way of background, the six applicants they are local residents effectively, are they?

45. MR EDWARDS: Yes, they are.

46. MR JUSTICE SULLIVAN: That is what I thought they were.

47. MR EDWARDS: They live in the surrounding area.

48. MR JUSTICE SULLIVAN: Mr Milner, do you want to make any observations as to why in principle people in that sort of position should not take out litigation insurance and have it reimbursed if they do?

49. MR MILNER: Well, my Lord, in principle, yes, it is a good thing. The applicants did consult us and ask us what our costs were going to be. We wrote back saying £6,500. So paying a premium of £5,700 would seem to be of particularly good value insuring against £6,500.

50. MR JUSTICE SULLIVAN: Maybe that can be dealt with by saying that in principle the cost of litigation insurance should be included in the assessment, but obviously assessment can look at matters of quantum. It seems to me that would be entirely appropriate. I mean if you choose to take ridiculously expensive insurance - I do not suggest that is the case - but if you do then there is no reason why the Council should pay it. But that is a matter that can be looked at by the taxing master, I would have thought, and obviously would have to be justified because in relation to your costs it does seem very large. It may be it was taken out at an earlier stage, I simply do not know. That is the sort of detail really that ought to be looked at more thoroughly.

51. MR MILNER: Yes, my Lord, it was taken out in recent days. I am suggesting nothing other than what your Lordship has proposed.

52. MR JUSTICE SULLIVAN: Very well. Then go for detailed assessment. The costs to include, in principle, litigation cost insurance subject, obviously, to questions of quantum.

53. MR EDWARDS: My Lord, there is one other matter my instructing solicitor has raised with me. It is the question of the basis upon which costs are awarded in this case. Plainly, your Lordship has a discretion to award them on the normal basis or on an indemnity basis. I raise the question of indemnity costs for this reason: my Lord, plainly the substantial response and substantial objections to the application for judicial review fell away during the course of lunch today, I make no criticism of my learned friend at all in relation to that, it could be an appropriate way of proceeding. But, my Lord, on 1st August of this year my instructing solicitor did write to the Council on a with/or without prejudice - not expressly without prejudice but wrote to the Council suggesting that - particularly in light of the Berkeley decision the Council may wish to consider their position in terms of proceeding with their objections to the application for judicial review. The invitation to "cave in" at that stage was not accepted and hence the matter was brought before your Lordship this morning.

54. My Lord, in light of what has emerged during the course of today I formally make an application that costs be on an indemnity basis.

55. MR JUSTICE SULLIVAN: Thank you for putting it in that way but I do not think I will trouble you Mr Milner about that. I understand why you make the application, whilst it is perhaps surprising that the lights were not flashing at a slightly earlier stage, I do not think I can go so far as to say that the Council's conduct is such as to warrant an award on an indemnity basis. I think we will leave it at that.

56. Thank you both very much. Thank you, Mr Milner, for taking instructions.