Neutral Citation Number:  EWCA Civ 986
IN THE SUPREME COURT OF JUDICATURE C/2002/0628
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT
(MR JUSTICE MOSES)
Royal Courts of Justice
Friday, 21st June 2002
B e f o r e :
LORD JUSTICE SCHIEMANN
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THE QUEEN ON THE APPLICATION OF
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ROYAL BOROUGH OF KENSINGTON & CHELSEA
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Smith Bernal Reporting Limited
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MR R HARWOOD (instructed by Richard Buxton, Cambridge CB1 1JX) appeared on behalf of the Appellant
The Defendant did not attend and was unrepresented
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J U D G M E N T
(As approved by the Court)
Friday, 21st June 2002
LORD JUSTICE SCHIEMANN: Before me is an appeal against a refusal of an application for permission to appeal by Moses J in relation to an application by three individuals to quash a planning permission. That is one appeal. The second appeal concerns the award by Moses J of the costs of that unsuccessful application. I deal with these two matters separately.
2. Turning first to the matter of substance the facts of the case I need not set out, they are set out in the judgment of Moses J under the judgment with reference 2002 EWHC 435. An attack is made primarily upon the legality of the Council's resolution; that attack being founded upon an alleged misunderstanding by the Council of local and national policies.
3. I have been taken with great care by Mr Harwood both on paper and by oral submission to the resolution, the recommendations and the reports that led to it. The point is an arguable one but not one which, in my judgment, has a real prospect of success. All planning policies are of a very general and broad nature. What one has here is some policies and some reasoned justification of policies. The relevant policies had been put before the planning committee and indeed they are ones with which they must be extremely familiar because the problems with which the case is concerned, namely parking in Kensington, are ones that underlie very many of the planning applications that comes before the Council.
4. The particular application in the present case is a most unusual one in relation to the provision of off-site car parking underneath an existing development, and therefore a land use of subterranean land rather than of surface land which could be used for other purposes. Wholly understandably these residents, and probably every one of them, view this as an unattractive prospect. I understand that entirely. However, it does not seem to me that the detailed arguments which have been advanced on the wording of policies broadly designed to achieve a number of different ends aid in this particular case. The national policies are essentially concerned with take up of land of housing. Local policies are faced with a gross shortage of parking space in borough for local residents. A potential advantage of this permission is that it is linked to a requirement that the only persons who can park underneath York House (which is the subject house) are local residents. The original suggestion was that they should be residents within 400 yards. That distance limitation was not imposed as a condition. It seems to me that the detailed criticisms which have been made of the reasoning were not ones which have a real prospect of persuading the full court that the planning permission should be quashed. I take comfort from the fact that Keene LJ came to precisely the same view.
5. There are other detailed criticisms in relation to the fact that the minutes of the meeting record that the persons at the meeting accepted the submissions made by the developers that similar developments had been allowed (two evidently were referred to) and it is suggested to me that they were manifestly not identical and that they were not similar. In any event they were the schemes that the authority had in front of them. They thought that they were similar. In some respects they clearly were - certainly one of them was. The main difference in relation to that one was that the allegedly similar scheme had a 400-metre provision which was indeed what was recommended in the present case, whereas the committee deliberately decided that a wider limitation on those who could use the car parking spaces, namely a limitation to those currently resident in the borough, was appropriate.
6. I note that the Secretary of State, who initially issued a direction preventing the local authority from granting planning permission, cogitated the matter for some eight months and came to the conclusion that there were no reasons why he should call the case in for his own consideration, notwithstanding that the Council planned to grant planning permission.
7. So far as the substantive case is concerned I refuse permission to appeal because I do not regard the case as having a real prospect of success at the end of the day.
8. The point is made by Keene LJ that from the point of view of the unfortunate resident whether there is a 400-limitation or not really makes no difference. To that the riposte is made by the indefatigable Mr Richard Buxton and Mr Harwood that public challenges to public authority decisions involve more than the private interests of the challenger and of course in broad terms that is true. But nonetheless the court has to take an overall view at the end of the day, and I agree with the views of the judge below and of Keene LJ that there really is no real prospect of a successful appeal.
9. I turn now to the second point which relates to costs awarded by the judge. There is no objection in principle to the award of costs but there are two matters which it is said raise a point of some general importance and are worthy of the consideration of the full court. I do propose to give permission to advance that costs challenge because there does seem to me to be a good reason why the appeal should be heard. It raises two points which are of much greater significance than the instant case. Had they been confined to the instant case I would have been much more hesitant because the total amount at stake I am told is something in the order of £6,000. The two points are these. One is that the judge has awarded costs to be paid by the losing party to the winning party in respect of costs incurred by the winning party prior to the grant of permission to move for judicial review. This is something that can happen frequently now that there are provisions whereby any person who wishes to challenge a decision of an authority has to send the application to the authority for comment initially. That in general I imagine will involve some costs, occasionally significant costs, and the judge in the present case has awarded those costs although he did not award the costs of the actual hearing for permission. This seems to me to raise a point of some general importance.
10. The second point concerns the charging rates of the solicitors. The point being made here is that the judge has allowed a charging rate of city solicitors to be given to the local authority and, it is said, has breached the indemnity principle because the appropriate amount charged internally is likely to be less than the amount that is being awarded by the judge. The task of the court is not made any easier because the no doubt busy director of law and administration has not chosen to reply to Mr Buxton's letter asking for details of the internal charging system. As I say I think these two points are points of some significance.
11. I ought to say this, however, that while they are of some significance to the world at large if the amount at stake is £6,000 the parties may well decide that it is not a very sensible use of their time and resources to litigate them in the Court of Appeal, thus incurring further costs which might very well come to £6,000 in themselves; but that is a matter for the parties.
12. If the case comes on for hearing I would not expect it to last for more than an hour or so, but it should be a three-judge court.
(Application for permission to appeal refused; application for permission to quash refused; permission granted to appeal costs order).