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Cite as: [2012] WLR(D) 374, [2013] PTSR 536, [2012] EWHC 3495 (Admin)

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Neutral Citation Number: [2012] EWHC 3495 (Admin)
Case No. CO/133/2012

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

Royal Courts of Justice
Strand
London WC2A 2LL
8 November 2012

B e f o r e :

LORD JUSTICE GROSS
MR JUSTICE SINGH

____________________

Between:
MICHAEL MARK ANTHONY WHITE
MICHAEL THOMAS WHITE Appellants
v
SOUTH DERBYSHIRE DISTRICT COUNCIL Respondent

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Computer-Aided Transcript of the Stenograph Notes of
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____________________

Andrew Hogan (instructed by Straw & Pearce Solicitors) appeared on behalf of the Appellants
Jonathan Mitchell (instructed by the Solicitor, South Derbyshire District Council) appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MR JUSTICE SINGH:

    Introduction

  1. This is an appeal by way of case stated from the decision of District Judge Jones, sitting at Derby Magistrates' Court, dated 20 May 2011, whereby each of the appellants was convicted of permitting land to be used for the purposes of a caravan site without being the holder of a site licence, contrary to section 1 of the Caravan Sites and Control of Development Act 1960.
  2. The informations were laid by the respondent local authority on 14 October 2010. The offence was alleged to have been committed on or after 1 June 2010.
  3. As the District Judge observed, this was an unusual case. The prosecution evidence was in an agreed format and no live evidence was presented to the Magistrates' Court. No evidence was adduced on behalf of the defence. Submissions were made on the law.
  4. The appellants were given an absolute discharge, but were ordered to pay the costs of the prosecution.
  5. Factual Background

  6. Since the late 1980s the relevant land, which is situated at Weston Hill, Weston on Trent, Derbyshire, has been used as a caravan site. The previous owner was a Mrs PA Hill, who was granted a caravan site licence by the respondent on 14 November 2001. That licence was granted in accordance with conditions based upon Government model standards dating from 1989. The licence was issued by Denise Blyde, an officer of the respondent authority.
  7. Since 18 May 2007 the appellants have been the freehold owners of land known as Weston Hill Chalet Park at the site. The site licence was transferred from Mrs Hill to the appellants on 3 March 2008. It was again Denise Blyde who made the transfer in accordance with section 10 of the 1960 Act.
  8. It was common ground between the parties that, at the time of the original grant of the licence in 2001, the land did not have an express grant of planning permission pursuant to the provisions of the Town and Country Planning Act 1990. However, it was also common ground that, if an application had been made for a certificate of lawful use and development, it would have been granted, since the land had been used as a caravan site for at least ten years.
  9. On 8 September 2009 a certificate of lawful use and development in respect of the land was granted to the appellants.
  10. The District Judge appended a written judgment to the case stated and stated that it forms part of that case. At paragraph 34 of his written judgment the Judge set out his findings as follows:
  11. (1) The agreed evidence demonstrates that, at the time the licence was granted, there did not exist a permission to grant due to the repeal of the established user provisions;
    (2) That on a proper construction of the statute, a licence could only have been granted if, at the time, there had been in place a permission;
    (3) That, given it is agreed evidence that there was in fact no permission in place at the relevant time, there could not be a valid grant;
    (4) Accordingly, if that is the case, then the licence transferred in 2007 is also invalid;
    (5) Therefore, on 4 June 2010, both defendants were operators of the site without a valid licence.
  12. I will return to the questions which have been stated for the opinion of this Court at the end of this judgment.
  13. Material Legislation

  14. The following provisions of the Caravan Sites and Control of Development Act 1960 are relevant.
  15. Section 1 provides:
  16. (1) Subject to the provisions of this part of this Act, no occupier of land shall after the commencement of this Act cause or permit any part of the land to be used as a caravan site unless he is the holder of a site licence (that is to say, a licence under this part of this Act authorising the use of land as a caravan site) for the time being in force as respects the land so used.
    (2) If the occupier of any land contravenes subsection (1) of this section he shall be guilty of an offence ...
    (3) In this part of this Act the expression 'occupier' means, in relation to any land, the person who, by virtue of an estate or interest therein held by him, is entitled to possession thereof or would be so entitled but for the rights of any other person under any licence granted in respect of the land ...
    (4) In this part of this Act the expression 'caravan site' means land on which a caravan is stationed for the purposes of human habitation and land which is used in conjunction with land on which a caravan is so stationed."
  17. Section 3 provides:
  18. (1) An application for the issue of a site licence in respect of any land may be made by the occupier thereof to the local authority in whose area the land is situated ...
    (3) A local authority may on an application under this section issue a site licence in respect of the land if, and only if, the applicant is, at the time when the site licence is issued, entitled to the benefit of a permission for the use of the land as a caravan site granted under part III of the Act of 1947 [i.e. the Town and Country Planning Act 1947; that would now be a reference to the equivalent provisions in the Town and Country Planning Act 1990] otherwise than by a development order.
    (4) If at the date when the applicant duly gives the information required by virtue of subsection (2) of this section he is entitled to the benefit of such a permission as aforesaid, the local authority shall issue a site licence in respect of the land within two months of that date or [such longer period as is agreed in writing] ..."
  19. It is unnecessary to set out other provisions in detail. Section 5 confers power on the relevant authority to attach conditions to a site licence. Section 7 enables a person aggrieved by any such condition to appeal to the Magistrates' Court. Section 9 confers power on the Magistrates' Court to revoke a site licence in certain circumstances, where there has been a conviction for breach of a condition attached to a site licence and there had already been two or more previous such convictions. Section 10, as I have indicated, provides for the transfer of a site licence.
  20. The Town and Country Planning Act 1990 contains the following relevant provisions.
  21. Section 57 lays down the basic rule that planning permission is required for the carrying out of any development of land. Development consists of either operational development, as defined in the Act, or a material change of use of land.
  22. Section 58 confers power on planning authorities to grant such planning permission.
  23. Section 171B lays down time limits for the enforcement of breaches of planning control. The relevant time limit in subsection (3), which applies to development consisting of a material change of use such as the present, provides that no enforcement action may be taken after the end of the period of ten years beginning with the date of the breach.
  24. Section 191 deals with the subject of a certificate of lawfulness of existing use and development and provides as follows:
  25. (1) If any person wishes to ascertain whether --
    (a) any existing use of buildings or other land is lawful; ...
    (2) For the purposes of this Act uses and operations are lawful at any time if --
    (a) no enforcement action may then be taken in respect of them (whether because they did not involve development or require planning permission or because the time for enforcement action has expired or for any other reason); and
    (b) they do not constitute a contravention of any of the requirements of any enforcement notice then in force ...
    (4) If, on an application under this section the local planning authority are provided with information satisfying them of the lawfulness at the time of the application of the use, operations or other matter described in the application, or that description as modified by the local planning authority or a description substituted by them, they shall issue a certificate to that effect; and in any other case they shall refuse the application ...
    (6) The lawfulness of any use, operations or other matter for which a certificate is in force under this section shall be conclusively presumed.
    (7) A certificate under this section in respect of any use shall also have effect, for the purposes of the following enactment as if it were a grant of planning permission --
    (a) section 3(3) of the Caravan Sites and Control of Development Act 1960; ..."

    The Appellants' Grounds of Appeal

  26. On behalf of the appellants, Mr Hogan argues that the respondent could not succeed in a prosecution such as the present in circumstances where it sought to rely on the unlawfulness of its own act, in granting the licence to Mrs Hill in 2001, in order to found that prosecution. Although the licence was said by the respondent to be ultra vires and therefore void, no proceedings had been taken by anyone to have it quashed in the Administrative Court. Although the respondent could not apply for judicial review of its own decisions, it is common ground that the Mayor or an individual member of the council could do so. In an appropriate case the Administrative Court will entertain such an application as it may be necessary to do so in order to vindicate the rule of law.
  27. He further submits that, even if otherwise the respondent should succeed, there would be a breach of the Convention rights and, accordingly, pursuant to the strong obligation of interpretation in section 3 of the Human Rights Act 1998, the 1960 Act should be construed in such a way as to lead to the appeal being allowed. In this context he relies in particular on the right to peaceful enjoyment of possessions in Article 1 of the First Protocol, which is one of the Convention rights set out in schedule 1 to the 1998 Act.
  28. The Submissions for the Respondent

  29. On behalf of the respondent authority Mr Mitchell submits that, when it purported to grant a licence to the appellants' predecessor in title in 2001, it had no power to do so. This is because, as is common ground, there was no relevant planning permission (in the extended sense, which includes a certificate of lawful use or development) in place at the time. He submits therefore that the licence was "invalid on its face".
  30. He submits that no injustice is done in such a case because the appellants have it within their own power to apply for a site licence and so regularise their position. There is no fee for such an application and it would be granted.
  31. He further submits that the appellants can gain no comfort from reliance on section 3 of the Human Rights Act. He submits that the appellants' human rights are simply not in issue in this case.
  32. Discussion

  33. The present appeal raises in a stark form a conundrum which arises from the basic principle of English public law that an ultra vires act is void and therefore to be treated as a nullity. Nevertheless, that act may have been relied upon by innocent third parties in the meantime.
  34. In Smith v East Elloe Rural District Council [1956] AC 736, at 769, Lord Radcliffe said:
  35. "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

    That case was concerned with a statutory time limit and a partial ouster clause, which was held to be effective even though, on a strict view of the ultra vires doctrine, it might have been said that a void decision is a nullity and therefore could be ignored.

  36. What is clear is that, once a court of competent jurisdiction has decided that an act is ultra vires, it will normally be treated as having no legal effect. In Hoffmann-La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295, at 365, Lord Diplock said:
  37. "It would ... be inconsistent with the doctrine of ultra vires as it has been developed in English law as a means of controlling abuse of power by the executive arm of government if the judgment of a Court in proceedings properly constituted that a statutory instrument was ultra vires were to have any less consequence in law than to render the instrument incapable of ever having had any legal effect."

    That case was concerned with delegated legislation but the principle would apply also to other decisions or acts of the executive.

  38. This was more recently confirmed by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143. That case concerned the question of whether a defendant in criminal proceedings is entitled to raise by way of defence the suggested invalidity of a byelaw under which he is prosecuted. At page 156, citing the above passage from Lord Diplock with approval, Lord Irvine of Lairg, Lord Chancellor, said:
  39. " ... Lord Diplock confirmed that once it was established that a statutory instrument was ultra vires, it would be treated as never having had any legal effect. That consequence follows from application of the ultra vires principle, as a control on abuse of power; or, equally acceptably in my judgment, it may be held that maintenance of the rule of law compels this conclusion."
  40. Earlier in his opinion, at page 154, Lord Irvine had considered the distinction between an act which is void and an act which is voidable. He observed that the decision of the House of Lords in Anisminic Ltd v Foreign Compensation Commission [1969] 1 AC 147 had made obsolete the historic distinction between errors of law on the face of the record and other errors of law. It did so by extending the doctrine of ultra vires, so that any misdirection in law would render the relevant decision ultra vires and a nullity. He continued that, today, therefore, the old distinction between void and voidable acts no longer applies.
  41. In Boddington, at pages 171 to 172, Lord Steyn expressed a similar view about the fundamental principle of ultra vires, citing Lord Browne-Wilkinson in R v Hull University Visitor, ex parte Page [1993] AC 682, at 701. He continued:
  42. "This is the essential constitutional underpinning of the statute based part of our administrative law. Nevertheless, I accept the reality that an unlawful byelaw is a fact and that it may in certain circumstances have legal consequences. The best explanation that I have seen is by Dr Forsyth who summarised the position as follows in 'The Metaphysic of Nullity -- Invalidity, Conceptual Reasoning and the Rule of Law' [in Forsyth and Hare (editors), The Golden Metwand and the Crooked Cord, 1998] at page 159:
    'It has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void.'"
  43. That analysis can now be found in the well known textbook on Administrative Law by the late Sir William Wade and Professor Forsyth (10th edition), at pages 253 to 254. At page 253 it is said that:
  44. "The truth is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense: their meaning is relative, depending upon the court's willingness to grant relief in any particular situation ... the problems of nullity are soluble by the formulation of principles and by their logical application, not by abandoning the field to free discretion."
  45. Further support for the relative, as opposed to an absolute, view of voidness can be found in Boddington in the opinion of Lord Browne-Wilkinson, at page 164, and in the opinion of Lord Slynn of Hadley, at page 165.
  46. Returning to Wade and Forsyth, later at page 253 it is said that:
  47. "An important step in developing a principled and practical approach to these conundrums has been the development of the theory of the second actor. This theory, which has attracted significant judicial support, seeks to explain how an unlawful and void administrative act may nonetheless have legal effect. It is built on the perception that while unlawful administrative acts (the first acts) do not exist in law, they clearly exist in fact. Those unaware of their invalidity (the second actors) may take decisions and act on the assumption that these (first) acts are valid. When this happens the crucial question is whether these latter, or second acts, are valid."
  48. An example of that analysis in practice, which preceded the literature to which I have referred, can be found in the decision of the Court of Appeal in Percy v Hall [1997] QB 924. In that case the question was whether a person who had been arrested by a constable pursuant to a byelaw which was later found to be ultra vires could sue the constable for false imprisonment. The Court of Appeal held that he could not. In giving the main judgment, Simon Brown LJ, as he then was, said at pages 947 to 948:
  49. "The central question raised here is whether these constables were acting tortiously in arresting the plaintiffs or whether instead they enjoy at common law a defence of lawful justification. This question, as it seems to me, falls to be answered as at the time of the events complained of. At that time these byelaws were apparently valid; they were in law presumed to be valid; in the public interest, moreover, they needed to be enforced. It seems to me one thing to accept, as I readily do, that a subsequent declaration as to their invalidity operates retrospectively to entitle a person convicted of their breach to have that conviction set aside; quite another to hold that it transforms what, judged at the time, was to be regarded as the lawful discharge of the constable's duty into what must be later found actionably tortious conduct ... I see no sound policy reasons for making innocent constables liable in law, even though such liability would be underwritten by public funds."
  50. As the decision in Boddington itself illustrates, there will be circumstances in which the courts will allow a person to raise an ultra vires argument even in a case which is not brought by way of judicial review. Another case which illustrates that principle is DPP v Head [1959] AC 83, which was considered in Boddington. At page 153, Lord Irvine, Lord Chancellor, recalled that in DPP v Head, at page 104, Lord Somervell had posed the question: "Is a man to be sent to prison on the basis that an order is a good order when the court knows it would be set aside if proper proceedings were taken?" Lord Irvine was of the clear view that the answer to that question must be "No". He said: "It would be a fundamental departure from the rule of law if an individual were liable to conviction for contravention of some rule which is itself liable to be set aside by a court as unlawful."
  51. However there will be exceptions even to that exception, where it will not be unjust to insist that, if an administrative act has not been challenged in the usual way in the Administrative Court, even a defendant to criminal proceedings may not raise a collateral challenge to it by way of defence. Examples can be found in Quietlynn Ltd v Plymouth City Council [1988] 1 QB 114 and R v Wicks [1998] AC 92, which were explained in Boddington by Lord Irvine at pages 160 to 161. In particular, at page 161, he emphasised the following important feature of both cases:
  52. "They were concerned with administrative acts specifically directed at the defendants, where there had been clear and ample opportunity provided by the scheme of the relevant legislation for those defendants to challenge the legality of those acts, before being charged with an offence."
  53. The present case raises a question which has not been the subject of direct authority: can a public authority which has acted ultra vires rely on the unlawfulness of its own act in order to found a criminal prosecution? However, the authorities to which I have referred provide helpful guidance as to the underlying policy of the law in this area which assists in the resolution of that problem. In particular, cases such as Percy v Hall indicate both that a void act may have some legal effect for some purposes, and that the law will strive to protect innocent third parties who have relied upon the apparent validity of that act.
  54. The respondent in the present case has been unable to show the Court any authority in which the prosecution has been entitled to rely on the unlawfulness of its own act so as to found a criminal prosecution.
  55. Mr Mitchell relied on the decision of the Court of Appeal in Credit Suisse v Allerdale Borough Council [1997] QB 306. In that case a bank sought to sue a local authority on a guarantee which it had given but which turned out to be ultra vires. It was held that the local authority could not be liable in those circumstances. However, that case was, as Mr Mitchell readily acknowledged, a civil case and far removed from the facts of the present case. In my view, it does not assist his argument here.
  56. Mr Mitchell placed particular reliance on two old cases which were criminal cases: The King v Downes (1790) 3 TR 560 and Pearson v Broadbent (1872) 36 JP 485. Those were cases in which a licence to sell liquor was held to be void in the context of criminal proceedings and so the defendant was guilty of an offence. However, the licence in each case was granted by justices of the peace, not by the very same authority which later brought the prosecution. Mr Mitchell sought to meet this difficulty for his argument by suggesting that the justices were acting as part of the Crown and that, since the prosecution was also brought by the Crown, it could be said that it was the same authority that was seeking to rely on the unlawfulness of its own earlier act. I do not find that suggestion persuasive. In my view, the justices, even when acting as a licensing authority and not sitting as a court of law, were not to be regarded as being the same authority as the prosecuting authority, even if (in a broad sense) both can be said to be part of the Crown.
  57. Mr Mitchell also submitted that the site licence which was granted to Mrs Hill in the present case in 2001 was clearly invalid on its face. The licence said on its face that it was being granted on the basis that the applicant was "entitled to the benefit of ... existing use rights". The words "permission (Ref. No. ...)" had been struck out by the person granting the licence. Mr Mitchell submits that it would have been apparent to a reasonable person reading that licence that it was invalid because it referred to a ground for granting it (existing use rights) which had been the subject of transitional provisions in the 1960 Act but which had been repealed in 1993. He submits that the reasonable reader would have known that the only basis on which a site licence could be granted in 2001 was that there was a permission in place, permission being understood in the wider sense, to include a certificate of lawful use and development. He submits that a reference number would then have been given.
  58. In my judgment, this is to assume too much of a reasonable reader. It not only requires that reader to go behind what the author of the document herself has said. It also requires the reader to be familiar with the underlying legislation, both the 1960 Act and the 1990 Act, and to be aware of a change in the legislation which took place in 1993. In my view, the invalidity of this site licence was not apparent on its face. To the contrary, it would have required the reasonable person to go considerably behind the face of the document in order to understand the reason for its invalidity.
  59. Finally, Mr Mitchell submitted that, although a criminal prosecution might seem to be unattractive, it was the only weapon in the respondent authority's armoury in order to enforce the law and to regularise the legal position. I do not accept that submission. As is common ground, there could in fact have been, and may still be, an application for judicial review brought by the Mayor or an individual councillor. Such an application would have been well out of time but the time limit in judicial review proceedings can in principle be extended in the court's discretion. It would not be appropriate for this Court to pronounce in any way on what might or might not be the attitude of the Administrative Court if an application for judicial review were to be brought. That would have to be considered by that Court on its merits. However, it will suffice to note, in the present appeal, that such an opportunity was and is in principle available to the respondent authority. It was not required to bring a criminal prosecution because there was no other way of regularising the legal position. I am far from persuaded that it would have been appropriate to resort to the criminal law in a case like the present, which arose from the respondent's own unlawful act, even if there were no other avenue open to a public authority.
  60. Accordingly, I accept Mr Hogan's primary submission and, for that reason, this appeal must be allowed.
  61. Human Rights

  62. In the light of what I have said in relation to Mr Hogan's primary submission, it is not strictly necessary to deal with the human rights argument which was advanced by him in the alternative. Nevertheless, since the Court heard argument about it, I will address it briefly.
  63. Mr Hogan submits that the provisions of section 3(3) of the 1960 Act must, so far as possible, be read and given effect in a way which is compatible with the Convention rights, pursuant to the obligation in section 3 of the Human Rights Act. In particular, he submits that the words "entitled to the benefit of a permission for the use of the land as a caravan site granted under [the 1990 Act]" should be interpreted in such a way that no actual grant of planning permission (or a certificate of lawful use or development) was required in November 2001. It would suffice that such a certificate would have been granted if one had been applied for.
  64. He accepts that there is authority which is against him on this issue of construction: Balthasar v Mullane [1985] 17 HLR 561, a decision of the Court of Appeal. However, he submits that that case was decided before the coming into force of the Human Rights Act and, therefore, must now be regarded as having been superseded by the will of Parliament as expressed in that Act.
  65. I am unable to accept those submissions. First, I cannot see that the legislation as interpreted in Balthasar is incompatible with any Convention right. Mr Hogan placed particular reliance on the right to peaceful enjoyment of possessions in Article 1 of the First Protocol. He submitted that a transferable licence could in certain circumstances be a possession. However, it is difficult to see how a failure to grant a licence can be regarded as an interference with a licence, especially in circumstances where a person has not applied for a licence and, if one had been applied for, it would have been granted.
  66. Secondly, to interpret section 3(3) of the 1990 Act as suggested would introduce unnecessary and unfortunate complexity into what should otherwise be a simple process. It would require a local authority to make enquiries of the underlying facts of a type that should not be necessary.
  67. Thirdly, I do not consider that section 3(3) should be given a new interpretation, which would be of general application, in order to cater for the present case, which is on any view an unusual one.
  68. Finally, I would find it impossible to read section 3(3) in the way suggested, even having regard to the strong nature of the obligation in section 3 of the Human Rights Act, since it clearly requires a permission to be "granted" and provides that a licence may be granted "if, and only if" the conditions set out in that subsection are fulfilled.
  69. Answers to the Questions in the Case Stated

  70. I would answer the questions which have been stated for the opinion of this Court in the following way.
  71. (a) Whether on the facts in this case and a proper construction of section 3 of the Caravan Sites and Control of Development Act 1960, I was correct in concluding that the respondent had had no power to grant the licence on 14 November 2001? Yes, but this does not necessarily answer the question whether the appellants could be convicted in the circumstances of this case.
    (b) Whether on the facts in this case, I was correct in finding that the licence was invalid on its face? No.
    (c) Whether in the event that I was correct in determining that the licence was invalid on its face, I had jurisdiction to determine as I did that the licence did not have to be treated as valid, that it was a nullity and that it was of no effect for the purposes of these proceedings? Even if this question arose, the licence was not invalid for all purposes and, in the circumstances of this case, should not have been disregarded.
    (d) Whether in the event that on a proper construction of section 3 of the Caravan Sites and Control of Development Act 1960 the respondent had no power to issue the licence on 14 November 2001, I was entitled to conclude on the facts in this case that the human rights of the applicants or others did not require me to construe the legislation so as to render the grant of the licence valid? Yes.

    Conclusion

  72. For the reasons I have given, I would allow this appeal and quash the convictions in this case.
  73. I would like to thank both counsel for their well-presented and concise submissions.
  74. LORD JUSTICE GROSS: I agree with Mr Justice Singh that, for the reasons he has given, this appeal must be allowed. I too would like to express my gratitude, both to Mr Hogan and to Mr Mitchell, for the assistance they have given. I add only a very few words of my own.
  75. As explained by Mr Justice Singh, this appeal has presented a most curious set of facts. On their own case, and as emphasised in submissions to this Court, the respondent prosecuted the appellants with reluctance and a degree of embarrassment. The respondent was frustrated that the appellants declined its repeated offers to regularise the licence position, and resorted to criminal proceedings because it could not think of an alternative.
  76. So far as concerns the appellants, their stance with regard to the licence position strikes me, with respect, as troubling even making every allowance for their averred concerns about litigation with third parties.
  77. As has been much discussed and is the source of no little complexity, an ultra vires administrative act is void, but not necessarily for all purposes - in particular, between the time of the act and the time, if any, when it is set aside, reflecting a reluctance to push the doctrine of nullity to extremes: see Administrative Law, Wade and Forsyth, 10th edition, at page 239.
  78. To me, this is such a case. At all events, I am unable to accept that it can be right for the respondent prosecutor to rely on its own unlawful act (the grant of an invalid site licence) to found the prosecution. If need be, I am amply satisfied that the site licence was not invalid on its face. It follows that the appeal must be allowed.
  79. I have reached this conclusion without reluctance. Certainly, at least on facts such as those of the present case, the criminal law should not be invoked merely because of the prosecutor's frustration at the perceived absence of public or civil law alternatives.
  80. In any event, and though I wish to say nothing to pre-judge any future proceedings, I am far from persuaded that the respondent had no alternative to criminal proceedings.
  81. MR HOGAN: Thank you very much, your Lordships. Counsel will draw up a minute of order to reflect the findings that you have made. There follows the issue of costs.
  82. LORD JUSTICE GROSS: Yes.
  83. MR HOGAN: Hopefully you have received skeleton arguments from both myself and Mr Mitchell.
  84. LORD JUSTICE GROSS: No. I received one from you, which I have now misplaced, but that is as I -- I have received nothing at all from Mr Mitchell.
  85. MR MITCHELL: Well, I can only apologise, my Lord, because my clerk assured me at 9.30 this morning that it had been lodged and filed.
  86. MR JUSTICE SINGH: I have had my one through.
  87. LORD JUSTICE GROSS: It may not be your fault.
  88. MR MITCHELL: Can I pass up to your Lordships ... (Handed).
  89. I can only apologise, your Lordships, because it was dealt with, by me, by 6 o'clock last night and certainly I was told this morning that it had been lodged and filed. My clerk will be spoken to in due course, when I get back from Nottingham.
  90. LORD JUSTICE GROSS: No. It may be, as I have said ...
  91. MR MITCHELL: My Lord, can I suggest that I just give you a moment to read the written submissions?
  92. LORD JUSTICE GROSS: Yes. I did read Mr Hogan's submissions. My Lord has it, so I will just take a moment.
  93. Mr Justice Singh has very kindly prepared a note of his judgment, which is remarkably similar to the judgment he has given orally; and he is happy for you to have a copy of that.
  94. MR MITCHELL: We are very grateful.
  95. MR HOGAN: Thank you, my Lord.
  96. LORD JUSTICE GROSS: So we will provide that to you, while we read this. (Handed).
  97. MR JUSTICE SINGH: While that is being handed, can I just stress that that is not the judgment. The judgment is what I have delivered in court. But for your convenience, I hope that it would be helpful to have that note.
  98. MR MITCHELL: It would help.
  99. MR HOGAN: It would be of great assistance. Thank you. (Handed). (Pause).
  100. LORD JUSTICE GROSS: Yes.
  101. MR MITCHELL: My Lord, it is a fairly full written argument. Mr Hogan has --
  102. LORD JUSTICE GROSS: Anything to add to it?
  103. MR MITCHELL: No. Mr Hogan has responded to it.
  104. LORD JUSTICE GROSS: Also very fully.
  105. MR MITCHELL: I do not intend to, therefore, delay you further by going through it again in oral submissions. I will rely on what you have just read in writing. Can I just make one comment about Mr Hogan's submissions and, in particular, paragraphs 15 and 16 of those written submissions?
  106. LORD JUSTICE GROSS: Yes.
  107. MR MITCHELL: Simply to observe that other than representation made on instructions from the Bar, no evidence has been presented to the Court to support the submissions there made. But that is the only comment that I wish to make in respect of that.
  108. LORD JUSTICE GROSS: Mr Hogan's submission, I think, leaves it open as to whether he wants costs from you or costs from central funds.
  109. MR MITCHELL: I have no difficulty with that.
  110. LORD JUSTICE GROSS: You might not; but what is the right order, if he is entitled to costs?
  111. MR MITCHELL: If he had succeeded below, he would undoubtedly have been entitled to an order for costs from central funds.
  112. LORD JUSTICE GROSS: Yes.
  113. MR MITCHELL: Costs here are in your Lordships' gift and normally go as between the parties; and so I accept that a normal Costs Order in this Court would be an order that the local authority would be bearing the -- as the unsuccessful party, it would be bearing the costs here.
  114. LORD JUSTICE GROSS: Yes.
  115. MR MITCHELL: You can see from the submissions that I make to your Lordship that I submit that the appropriate order --
  116. LORD JUSTICE GROSS: Yes, I know that. It is just that if he succeeded, you would accept that here, the right order would be against you.
  117. MR MITCHELL: In the normal course of events, subject to your Lordships considering my argument on --
  118. LORD JUSTICE GROSS: Of course, of course. And what about -- if he is entitled to costs, what about the costs below?
  119. MR MITCHELL: If he is entitled to costs, as to the costs below, he would undoubtedly have been entitled to an order that those costs be paid out of central funds.
  120. LORD JUSTICE GROSS: Yes. Anything you want to add, Mr Hogan?
  121. MR HOGAN: Your Lordship, just on that last point of order, I would agree that the costs here primarily are sought against the council. The costs below would commonly come out of central funds.
  122. LORD JUSTICE GROSS: Thank you.
  123. MR HOGAN: But the position that my clients are in is that they are not really concerned who pays their costs.
  124. LORD JUSTICE GROSS: No, no, but I --
  125. MR HOGAN: I know. But that would be the correct position in the Court.
  126. LORD JUSTICE GROSS: Yes, that is what I thought. Anything else you wish to add?
  127. MR HOGAN: No, you have my written submissions.
  128. LORD JUSTICE GROSS: Thank you very much. We will rise.
  129. (A short break)
  130. LORD JUSTICE GROSS: This is the judgment of the Court as to costs.
  131. In the ordinary course of events, costs follow the event, so a successful party will get its costs. But the Court retains a discretion to make a different order, reflecting the conduct of the parties, as is amply set out in CPR Part 44.
  132. Here, it was perfectly apparent that there was, to put it no higher, a problem concerning the invalid site licence. At some stage, that problem needed to be addressed. In fairness to the respondent, it issued numerous invitations to the appellants to resolve the matter and ultimately, wrongly as we have held, only prosecuted with effect from 1 June 2010.
  133. There was neither then, nor is yet now, any evidence as to why the appellants resisted these invitations to resolve the matter in some different, more reasonable way. What we have heard have been submissions, as distinct from evidence, from Mr Hogan.
  134. As it seems to us, the Court's order for costs should reflect to some extent our concerns as to the manner in which this case developed and, in particular, the fact that, to a limited extent, it can properly be said that the appellants brought the initial prosecution on themselves - even though, as we have held, ultimately that prosecution was the wrong way for the respondent to proceed.
  135. If it is right to say that to some extent the appellants brought the initial prosecution on themselves, it is, however, necessary to distinguish the position on appeal. Once they had been convicted, they faced the choice of either living with the conviction or appealing to set it aside. They have appealed, the respondent opposed the appeal, and the appellants have been successful.
  136. As it seems to us, we propose to reflect these facts and to do justice in this case by making the following order.
  137. We quash the previous order as to costs in the Court below. We replace it with an order that the appellants should get 50 per cent of their costs below from central funds. With regard to the appeal to this Court, however, for the reasons we have given, the appellants are entitled to their costs, to be taxed, if not agreed; and they are entitled to 100 per cent of those costs, subject of course to taxation, from the respondents.
  138. LORD JUSTICE GROSS: Sorry, Mr Mitchell. Not much comfort for you, but some comfort for the general body of taxpayers.
  139. MR MITCHELL: It just depends which part of the general body of taxpayers it comes out of.
  140. MR HOGAN: My Lords, my clients have asked me to express their very deep gratitude to you for dealing with this case so patiently and so courteously over the last day and a half, as it has meant a lot to them.
  141. LORD JUSTICE GROSS: Well, that is very courteous of them and we thank them. But I am sure that you and they will appreciate how much assistance we have had, both from Mr Hogan for you, and from Mr Mitchell, for the manner in which he has conducted this hearing. We really are grateful to you both.
  142. Thank you very much.


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