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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Oxby, R (on the application of) [1997] EWCA Civ 2960 (11 December 1997)
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Cite as: [1998] PLCR 283, [1997] EWCA Civ 2960

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Neutral Citation Number: [1997] EWCA Civ 2960
Case No. QBCOF 97/0301/D

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION (CROWN OFFICE LIST
(MR JUSTICE POPPLEWELL)

Royal Courts of Justice
Strand
London WC2
11 December 1997

B e f o r e :

LORD JUSTICE HOBHOUSE
LORD JUSTICE MILLETT
LORD JUSTICE OTTON

____________________

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
R E G I N A
- v -
OXBY

____________________

(Transcript of the Handed down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street,
London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)

____________________

MR D MOLE QC and MR P BROWN (Instructed by Messrs Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the Appellant
MR C SHELDON and MR A ALESBURY (Instructed by Messrs Eversheds, Derby) appeared on behalf of the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    LORD JUSTICE HOBHOUSE: This is an appeal by Mr Oxby, the applicant, from a judgment of Popplewell J dated 11th December 1996 dismissing his application for judicial review. His application is to review and quash two planning decisions of the Bassetlaw District Council dated respectively 21st February 1994 and 14th October 1994. The Respondents to the appeal were the interested Third Parties, Mr and Mrs Howcroft. By these decisions planning consent was granted to develop for domestic housing two plots of agricultural land at Grange Farm, Ollerton Road, Retford, Nottinghamshire, owned by Mr and Mrs Howcroft. Mr Oxby contends that the decisions and grants of planning consent were invalid on the ground of bias or apparent bias.

    Mr Oxby is applying as the leader of the Bassetlaw District Council and the chairman of its Policy and Resources Committee. By a resolution of that Committee dated 24th April 1996 he was directed to commence these judicial review proceedings subject to receipt from counsel of a written opinion which confirmed the advice given earlier in conference. The Committee also resolved to fund Mr Oxby's application and not oppose it.

    Central to this matter is the question whether the Howcrofts should be paid compensation for the revocation of the planning consents under sections 97 and 107 of the Town and Country Planning Act 1990. The sum of money potentially at stake is of the order of 2 million. Such a sum is of significance to the Council and of obvious importance to the Howcrofts. If the Council through Mr Oxby succeed in obtaining a declaration that the planning consents were void, the Council will not have to invoke s.97 and will not have to pay compensation under s.107. If, on the other hand, the Council has to act under s.97, it will then lay itself open to a claim for compensation under s.107 and it has been assumed for the purposes of these proceedings that such compensation would be substantial.

    The present case has unusual features which necessitate an explanation not only of the subject matter but also how it came about that this application was made and that Popplewell J decided the application upon grounds which did not include a consideration of the merits.

    Grange Farm is on the outskirts of Retford. It was, and still is as regards the material parts, owned by Mr and Mrs Howcroft whose livelihood when they were younger was farming. It was agricultural land. It obviously had the potential for development for residential housing but could not be so developed without first obtaining planning consent. In November 1992 the Howcrofts entered into an agreement with a Mr Coney. Mr Coney lived in Worksop and appears to have specialised in assisting landowners to realise the development potential of their land. The agreement he made with the Howcrofts was a joint venture agreement. The object of the joint venture was stated to include-

    "The obtaining of planning consent for residential development of the property
    ..............
    The disposal of the property at an enhanced residential value
    The doing of such acts matters or things as may be consistent with or necessary for or incidental to the attainment of the foregoing objects."

    The agreement recited that:

    "Mr Coney has agreed with Mr and Mrs Howcroft to make application for outline planning consent with regard to residential development in respect of the property."

    It included a clause that he should make the planning application and initially pay all fees relating to it. Mr Coney was to have the exclusive right during a two year period following the grant of planning consent to sell the property on behalf of the Howcrofts. He was entitled to be paid 25% of the net price received.

    Thus, by this agreement, the Howcrofts constituted Mr Coney their agent for the purpose of applying for and, if possible, obtaining the requisite planning consents and they gave him a substantial financial interest in the grant of those planning consents.

    The land which was the subject of this agreement was effectively the totality of the Howcrofts' land at Grange Farm. A plan was attached to the agreement which showed the boundaries of the land. For the purposes of explaining the subsequent history of the matter it is necessary to divide this land into three different plots. They are the "Parrymore 1" land, the "Parrymore 2" land and the "Southfields" land.

    In November 1992 the detail of the consultative draft local plan was still under discussion by the Council's Steering Group of which Councillor Hoare was a member. On 23rd November 1992, that is to say four days after the Howcrofts had made their agreement with Mr Coney, it was agreed that the draft should allocate land to the south of Ollerton Road which included part of the Parrymore 1 land for residential development. On 26th July 1993 a company called Parrymore Limited set up by Mr Coney for that purpose made an application for permission for the residential development of the Parrymore 1 land. On 20th August 1993 the steering group accepted a proposal by Councillor Hoare (contrary to the advice of the officers of the Council) to extend the land zoned for residential development so as to include the whole of the Parrymore 1 land and the Parrymore 2 land. Also included in this extension was another plot lying to the north of the Parrymore 2 land which belonged to another landowner, an elderly lady. On 22nd September 1993 the Parrymore 1 application was considered by the Council's Planning Sub-Committee with Councillor Hoare in the chair and, despite the officers' recommendation that the application should be refused, the Sub-Committee resolved to grant consent. On 11th October 1993 the decision notice granting the Parrymore 1 consent was issued. The Parrymore 1 land was sold to a developer on 10th January 1994 with the benefit of the planning consent for a substantial sum of money. The net proceeds were divided 75% to the Howcrofts and 25% to Mr Coney. Houses have since been built on this land.

    Meanwhile in November and December the draft local plan incorporating Councillor Hoare's extension of the land zoned for residential housing at Grange Farm proceeded through the relevant committees. On 20th December 1993 the application for planning consent in respect of the Parrymore 2 land was lodged. The same company was used as the applicant. On 9th February 1994 this application was considered by the Council's Planning Sub-Committee. Councillor Hoare was again in the chair. Against the officers' recommendation the Sub-Committee resolved to grant consent. The decision notice granting this consent was issued on 21st February 1994. The Parrymore 2 land has not been sold by the Howcrofts and remains undeveloped.

    In May 1994 Councillor Hoare ceased to be a member of the Council and Councillor Crossland took over as chairman of the Development Committee and the Planning Sub-Committee. On 1st July 1994 at a meeting of the Steering Group at which the allocation of land for residential development at and adjoining Grange Farm was again under consideration with a view to reducing the area so allocated, Councillor Crossland proposed that the land belonging to the elderly neighbour of the Howcrofts should be removed from the land allocated (apparently on his statement that the elderly lady did not intend to develop that land) and that the Southfields land lying to the south of Parrymore 1 and Parrymore 2 should be added to the land zoned for residential development. The steering group accepted Councillor Crossland's proposal.

    Eleven days later, on 12 July, the application was made for the residential development of the Southfields land. This application completed the applications necessary to be made by Mr Coney on behalf of the joint venture under the agreement of November 1992. This application contained some unusual features. It was made in the name of an unincorporated entity "Southfields Properties". It gave an address in Wandsworth which was not the address of any business; it was a residential property in multiple occupation, among the occupants apparently being two of Mr Coney's sons. The telephone number turned out to have no connection with any company of the stated name. The fee was paid by a cheque drawn by the firm of solicitors which have at times acted for Mr Coney, though the solicitors, claiming client confidentiality, have declined to say who their client was on this occasion. The application purported to be signed by a Mr Roberts whose identity (if he was ever a real person) has never been traced or disclosed by the Howcrofts or Mr Coney. He did not live at the address given. It is an irresistible inference from these facts and the surrounding circumstances that this application was in fact made by Mr Coney but was made in these terms so as not to disclose his participation in the application. The certificate on the application signed by Mr Roberts certified that he had given notice of the application to the Howcrofts and there is no suggestion that they were unaware of the making of this application or had any wish to disassociate themselves from it. On 21st September the Southfields application was considered by the Council Sub-Committee with Councillor Crossland in the chair and, against the advice of the officers, it was resolved to grant consent. The decision notice was issued on 14th October 1994. The Southfields land, like the Parrymore 2 land, has not been sold by the Howcrofts and remains undeveloped.

    The sequence of events which I have recounted caused concern to other councillors and the responsible officers of the Council. There had back in May 1989 been a disturbing incident involving a non-disclosed association between Mr Coney and Councillor Hoare in connection with a planning application. Investigations have revealed further contacts or associations between Mr Coney and members of the Bassetlaw Council, in particular with Councillors Hoare and Crossland, extending over the period with which the present proceedings are concerned. A number of other questionable planning decisions had been made and it was evident that there had been a failure to have proper regard to an appropriate assessment of the extent of the need for new housing and the allocation of land for that purpose. The County council had refused to certify conformity with the structure plan. Some planning applications competing with those in which Mr Coney was interested had been unjustifiably refused. Mr Coney appeared to have had an interest in very many of these matters and Councillor Crossland's position as Chairman of the Development Committee was becoming untenable.

    It was in these circumstances that the Council had in the spring of 1995 to take the advice of leading counsel upon whether it could sustain certain refusals of planning consent and in July 1995 the Chief Executive of the Council and other officers recommended an independent enquiry into the performance by the Council of its planning functions. In September 1995 the Council resolved to set up an independent enquiry. By this time the affairs of the Council had attracted considerable local publicity and the setting up of the enquiry was a matter of public knowledge and reported in the local press. It was appreciated that planning decisions of the Council were under investigation. The person appointed by the Council to carry out the independent enquiry was Mr Richard Phelps CBE who was on the Secretary of State's panel of chairmen for the public examination of structure plans. He started his work in November 1995. His report was delivered to the Council on 14th March 1996 and considered by a special meeting of the Council, accompanied by a large amount of local publicity, on 22nd March 1996.

    The Phelps Report is a lengthy document running to some ninety pages. The planning applications and decisions for 12 sites were specifically discussed, including those relating to the land at Grange Farm. Mr Coney was referred to throughout as "Developer X". Developer X was identified as being the common factor in the questionable decisions. "As it became possible to look at a number of applications together and the common factor of Developer X's association with them began to be perceived, the picture became very different." (paragraph 3.24) "Underlying all the main cases and most of the others, lay in one way or another, and at some time or another, the interest of Developer X. Of that there can be no reasonable doubt in the eyes of the independent observer." (paragraph 6.63)

    Mr Phelps commented upon the refusal of the solicitors acting for Mr Coney and (among others) the Howcrofts to provide any assistance to him. Since the refusal was on the grounds of client confidentiality it must have been based upon a refusal by their clients to allow them to assist his inquiry and divulge information to him. Mr Phelps concluded that the correct inference was that "Developer X" had been at least a substantial beneficiary of the relevant planning decisions. He said that he had no evidence that any money or tangible benefits had passed from the developer to anyone connected with the Council but stated:

    "I believe any reader with knowledge of the facts set out above must reach the conclusion that the system was manipulated. Why was the Committee so keen to grant outline planning permissions in which Developer X was involved in various ways? Whatever he may or may not have done, it is difficult to match the Committee's conclusions with the requirements of the national code of conduct. Be that as it may, the action I propose is fully justified by reference to the results of the Committee's decisions, regardless of any questions of their motivation or Developer X's involvement in them." (paragraph 6.65)

    He concluded that there must have been a failure on the part of some Councillors to disclose an interest on certain occasions saying that the conclusion that nothing was wrong would be "naive". (paragraphs 6.72 and 6.73) He made various recommendations with regard to the running of the Council and the resignation of the Councillors responsible for the decisions. He recommended that the powers of the Council under s.97 be exercised in respect of, among other planning consents, the consent given for the Southfields land. As regards the Parrymore 2 land, he considered that no action need be taken since it appeared not to be capable of development on its own. Mr Phelps made no reference at any point in his report to any question of judicial review or using that procedure to obtain the quashing of the planning decisions.

    The outcome of the special meeting of the Council on 22nd March 1996 was, so far as presently material, that counsel's advice should be sought. This was done and leading counsel gave advice in conference on 1st April. There is no secret that his advice was that, as regards Parrymore 1 no further action should be taken and that as regards Parrymore 2 and Southfields s.97 should not be invoked but that there should be an application for the judicial review of those planning decisions with a view to their being declared illegal and void on the grounds of bias or apparent bias on the part of councillors concerned. This advice was subject to counsel confirming his oral advice in a written opinion.

    On 21st June these proceedings by way of judicial review were commenced by lodging on behalf of Mr Oxby described as the leader of the Council and Chairman of its Policy and Resources Committee a Form 86A seeking the judicial review of the Parrymore Two and Southfields decisions and orders of certiorari to quash those decisions and declarations that they were unlawful, ultra vires and of no effect. The grounds on which relief was sought run to 18 pages and set out fully the relevant history and particularized the apparent bias of, among others, Councillor Hoare and Councillor Crossland. It also, in the alternative, made allegations that the Southfields consent had been obtained by fraud and deception in that it had been applied for in the name of a non-existent person "in a deliberate attempt to disguise the identity of the true applicant Mr Frank Coney and so to conceal any connection between the applicant and members of the respondent's Planning Sub-Committee". The grounds also dealt with and sought to explain the delay that had occurred in the making of the application. It was supported by a full affidavit sworn by the solicitor and head of Legal Services of the Department on behalf of Mr Oxby which ran to 47 pages and exhibited some 360 pages of documents. The length of the Form 86A and of the supporting affidavit was entirely appropriate in view of the subject matter of the application and the serious allegations that were being made. They must have required careful preparation.

    The application for leave to move was heard by Mr Justice Buxton on an inter partes hearing on 29th July 1996 at which both Mr Oxby and the Howcrofts were represented. Mr Howcroft junior, the Howcrofts' son, had sworn an affidavit on their behalf which was before the court. Mr Justice Buxton granted leave, delivering a reasoned judgment. He recognized that at the heart of the matter was the question of payment of compensation to the Howcrofts. He covered the question of delay and said it should not at the leave stage preclude the making of the application. He observed that Mr Coney was the person whom the Howcrofts had selected as their agent. He discussed the question of prejudice upon which the Howcrofts were relying and concluded that it did not justify the refusal of leave. He said it was of high public importance that the relevant allegations of impropriety in public life should be investigated. He stressed the very strong prima facie case which the applicant had made out concerning the conduct of Mr Coney and added:

    "So far there is no explanation at all not only of why Mr Coney was used, but why, he having decided to make an application, it was not made by him at all but by companies the ownership of which has proved difficult to ascertain."

    When the matter came before Mr Justice Popplewell in December 1996 additional affidavit evidence dealing with the question of delay and prejudice had been filed. The case of the Howcrofts was that proceedings by way of judicial review were wholly inappropriate and that in any event the remedies asked for should not be granted. The Howcrofts did not make any positive case upon the merits. They relied upon no evidence from Mr Coney. They did not seek to rebut the inference of apparent bias. They did not deal at all with the apparent misrepresentation that had occurred when making the Southfields application. Instead they took three points: firstly the locus standi of Mr Oxby to make the application; secondly the fact that the Council had an alternative remedy open to them under the 1990 Act to revoke the consents under s.97; and, thirdly, delay. Mr Justice Popplewell dealt with each of these points separately as distinct preliminary points. He was not prepared to decide the first (locus standi) in favour of the Howcrofts but as regards the second and the third (alternative remedy and delay) he decided that they were sufficient to justify him in refusing any remedy to the applicant regardless of what might be the strength of the applicant's case on the merits about which he expressed no view.

    The tenor of his judgment is markedly different from that of Mr Justice Buxton. He clearly considered that the type of allegations of misconduct in public life which he believed were being raised by the applicant should be dealt with in ordinary civil proceedings not by way of judicial review and that it was wrong in principle that judicial review proceedings should be used as a means of avoiding the need to pay compensation under the 1990 Act to the Howcrofts. He considered that revocation of the consents under s.97 gave the Council an adequate remedy. As regards delay he found that there had been undue delay between 14th March and 21st June 1996.

    "Even if one takes, in favour of the respondents, 22nd March when it was considered by the Council, it is quite obvious that the application was not made promptly having regard to the length of time since planning permissions had been granted.
    .....
    I am quite satisfied that there has been undue delay."

    He considered the two affidavits which had been placed before the court on behalf of the Howcrofts and concluded that they "have had their rights substantially prejudiced". He accordingly refused relief. It is against these conclusions that Mr Oxby has appealed to this Court.

    In this Court Mr Alesbury on behalf of the Howcrofts clarified the way in which their case was being put. He relied upon the same three points as before Mr Justice Popplewell but cumulatively as justifying the refusal to grant the remedies sought by way of judicial review. At one time it seemed that if we were to conclude that the appeal should be allowed in the sense that the dismissal of the application by Mr Justice Popplewell on a preliminary objection could not be sustained, the matter would have to be remitted to the Divisional Court for a consideration of the merits. However Mr Alesbury has frankly and helpfully reconfirmed that the Howcrofts have no evidence which they would wish to put before the Court in response to the affidavit evidence of the applicant and have no positive case to make on the merits. Under these circumstances he realistically recognizes that a remission to the Divisional Court would (on this hypothesis) serve no useful purpose and that his clients' case effectively stands or falls by the points which he has argued although he formally makes no concession as regards the allegations made by the applicant. I will accordingly proceed with the discussion of the arguments which he has advanced on the basis that the applicant has made out a strong prima facie case on the merits which has not been answered and evaluate the approach to the exercise by the Court of its discretion whether or not to grant the remedies asked on that basis.

    Sufficient Interest:

    S.31(3) of the Supreme Court Act 1981 provides:
    "No application for judicial review shall be made unless the leave of the High Court has been obtained in accordance with the Rules of Court; and the Court shall not grant leave to make such an application unless it considers that the applicant has a sufficient interest in the matter to which the application relates."

    These words are repeated in RSC Order 53 rule 3(7). What amounts to a "sufficient interest" has been widely interpreted in recognition of the character and purpose of the procedure for obtaining judicial review. (See IRC v National Federation [1982] AC 617 and later authority including ex p. Greenpeace No.2 [1994] 4 AER 239) The peculiarity of the present case is that the applicant, Mr Oxby, is in effect acting as a representative of the Respondent, the Council. It is on the direction of the Council that Mr Oxby is bringing these proceedings; it is decisions of the Council which Mr Oxby seeks to have declared void. It is possible to justify the making of the application by Mr Oxby as an elector of and council tax payer to the Council. In the context of local government such a basis for establishing a sufficient interest has been recognized. This was recognized by Popplewell J in his judgment below, conveniently citing from "Judicial Remedies in Public Law" by Clive Lewis at p.277. However such a justification would be artificial in the present case. More germane is what was said by Nolan J in Ex parte Jones [1988] 2 AER 207 at 215. That like the present case concerned allegedly unlawful conduct by a local authority. The council had granted a council house to a councillor. The applicant was another councillor. No objection as such was taken to that councillor appearing on the record as the person making the application but Nolan J in the unusual circumstances of that case chose to comment:

    "It [the application] was made by the leader of the Council, the view being correctly taken that the Council itself could hardly be both applicant and respondent. Counsel for Mrs Kingdom accepts, again correctly in my view, that the leader of the Council has the necessary locus standi."

    In my judgment this represents an acceptable approach. It is a convenient and appropriate course to adopt provided, of course, it is not abused. Such a role of the applicant is sufficient to meet the requirements of the statute and the rules at the stage of application for leave. At the stage of the decision whether or not to grant the remedy asked on the substantive application for judicial review, the nature of the role of the applicant is one of the factors which can, and should in cases such as the present, be taken into account in deciding whether to grant the remedy sought. In Ex parte Argyll Group [1986] 1 WLR 763 at 773 Lord Donaldson MR said:

    "The first stage test, which is applied upon the application for leave, will lead to a refusal if the applicant has no interest whatsoever and is, in truth, no more than a meddlesome busybody. If however, an application appears otherwise to be arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply, leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At this stage the strength of the applicant's interest is one of the factors to be weighed in the balance."

    I accept the submission of Mr Alesbury that this is the relevance of the role of Mr Oxby. When exercising the discretion whether or not to grant the remedy the Court must take into account that in substance, though not in form, it is the Council itself that is seeking to have decisions of its own, through one of its own Committees, declared void. The questions of delay, alternative remedies and prejudice to interested third parties and the ultimate exercise of the discretion must all be assessed with this factor in mind.

    Alternative Remedies:

    The statutory scheme provided for in sections 97 and following of the 1990 Act are in effect a mirror image of the provisions governing the grant of planning consents. The criteria to be applied are still planning criteria. The initiative is taken either by the Council under s.97 or by the Secretary of State under s.100. The notice of revocation has to be served on the owners and occupiers of the land affected and upon any other person whom it is believed will be affected by the order. Any such person has the right then to state that he opposes the revocation and the matter thereafter proceeds in a way which parallels the procedure following the refusal of a planning application. The important feature of the power of revocation is that it may take into account circumstances arising since the original grant of consent. The power of the local planning authority is granted in terms which are widely expressed. It exists whenever "it appears to the local planning authority that it is expedient to revoke or modify any permission to develop land". (s.97(1))

    In the present case there are valid planning grounds for revoking the relevant consents. On planning grounds, it is a more than tenable view that the consents ought never to have been granted. Indeed it is the case of the applicant that they manifestly should not have been granted. Therefore in this case (which would not always be the case where some grant of consent had been obtained by improper methods) there was (and is) scope for the Council to exercise its power to revoke under s.97. But they may and should only do so if they consider it expedient to exercise that power. The exercise of the power carries with it a right to a person interested in the land (whether he objects to the revocation or not) to apply for compensation under s.107. As previously stated it is the assumption made by both the Council and by the Howcrofts that such compensation would in the present case be substantial. The Council does not consider it expedient to revoke these consents. It is the view of the Council and its contention that the consents were vitiated by either actual or apparent bias and should be declared void without the payment of any compensation. Indeed, they submit that it would be wrong and a dereliction of the duty of the Council not to seek to have these consents set aside but to choose to revoke them and pay compensation.

    In my judgment this is a legitimate and proper attitude for the Council to adopt. If they are entitled to have the consents set aside without the payment of compensation, that is what should occur and they should not lend themselves to the payment of inappropriate and unnecessary compensation by reason of exercising their power under s.97.

    However this point again serves to focus what this case is about. Is it just that these consents should be vacated on the application of the Council without the payment of compensation to the Howcrofts? To categorize the point as one of "alternative remedies" is over-formalistic as is the argument of Mr Mole QC for the applicant that the applicant is an individual who as such has no capacity to revoke consents under s.97, which power lies solely with the Respondent Council. As previously stated, the relevance of the sufficient interest point is to demonstrate that it is in reality the Council that is bringing these proceedings and it is the Council's interest that is being served thereby.

    Delay, the facts:

    That there has been a very substantial lapse of time since the grant of the consents cannot be disputed. For the Parrymore 2 consent well over two years elapsed before the application for judicial review was made and in respect of the Southfields consent the period which elapsed was only a few months short of two years. It was accepted by Mr Justice Popplewell that the delay down to the receipt by the Council of the Phelps Report was not undue delay. The Council (apart from the few Councillors who had dealings with Mr Coney) was unaware of what was going on. It was as evidence began to accumulate over a period of time that suspicions hardened into a basis for action. It was reasonable that the initial response of the Council should be to commission an independent inquiry and report. The setting up of that enquiry attracted considerable local publicity and indeed was advertised. There is no suggestion that the Howcrofts and those acting on their behalf were not aware of the existence of the inquiry and that planning consents which they had obtained were being investigated. Similarly it was reasonable for the Council to await the delivery of the Phelps Report before deciding what action they should take. The passage of time between 14th, or 22nd, March 1996 and 21st June 1996 added to the period during which the rights of the Howcrofts might have been adversely affected. But again, they must have been well aware (and indeed they do not suggest to the contrary) that their consents were liable to be ineffective either on the basis of an exercise of the power of revocation under s.97 or on some other basis.

    As regards the use of time between March and June 1996 there was much that had to be done: counsel's written opinion had to be obtained; in accordance with whatever advice he gave the requisite documents had to be drafted and lodged. These tasks might have been completed more quickly but they involved a substantial amount of work. The time occupied could be described as involving some delay on the part of the Council but in my judgment it was scarcely "undue" delay and if it was undue it was only by a narrow margin.

    In my judgment the lapse of time has to be taken into account considering the exercise of the court's discretion as one of the relevant factors. Its relevance is not to providing any significant criticism of the Council in its mounting of this application but rather as pointing out the need to examine carefully to what extent the passage of time has affected the legitimate interests of the Howcrofts.

    Indeed, this is implicitly accepted by the Council because they have not sought to disturb the consent given in respect of the Parrymore 1 land. As previously stated, that land was sold and developed before the facts upon which the Council now relies came to light. The Council accepts that in view of that change of circumstances, it could not be just to seek to avoid that consent. It can also be commented that the implementation of the consent would also have precluded any exercise of the power of revocation under s.97: see subsection (3). The Parrymore 2 land and the Southfields land however remains unsold and undeveloped. The applicant submits that under these circumstances there is no reason to refuse relief.

    Delay, the legal framework:

    Since this matter was before Mr Justice Popplewell the Court of Appeal has reviewed the law in R v Criminal Injuries Compensation Board ex parte A [1997] 3 WLR 776. The judgment of Lord Justice Simon Brown in that case reviews the authorities and provides valuable guidance upon the matters which should be taken into account in the exercise of the discretion by the Court. The governing statutory provision is s.31(6) of the 1981 Act:

    "Where the High Court considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant -
    (a) leave for the making of the application; or
    (b) any relief sought on the application,
    if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

    This provision expressly relates to the grant of relief as well as the initial application for leave to move which is also covered by RSC O.53 r.4. It was implicit in the grant of leave by Buxton J that either no extension of time under r.4 was required or that it was an appropriate case in which to grant one. But that does not conclude the relevance of delay at the time of deciding whether to grant relief. It is thus necessary to consider what Simon Brown LJ said in ex parte A about the relevance of delay at the time of the determination of the substantive application for judicial review and the exercise of the court's discretion. Simon Brown LJ said at p.790-1:

    "If, of course, at the substantive hearing it appears that the grant of relief would be likely to cause hardship, prejudice or detriment, then clearly the reasons for the earlier delay may come back into play. But by that stage the applicant will have established his substantive challenge (else he will in any event fail on the merits and all questions of delay will be irrelevant) and the question will be: should the applicant have to suffer an unlawful decision or should the respondent (or third party) have to suffer the hardship, prejudice or detriment which would result from its being quashed? (I pose the question by reference to a certiorari challenge such as this.) It is into that balance that the earlier "undue delay" must then be put, its weight into the scales being affected principally by the following considerations:
    (i) The length of the delay in seeking leave.
    (ii) The extent to which the applicant was to blame for the undue delay. He may, of course, have been wholly blameless: three months may have passed before he could possibly have discovered any basis for the challenge yet the grounds would nevertheless have arisen (see rule 4(3)) so as to set time running, and "there is undue delay for the purposes of section 31(6) whenever the application for leave to apply is not made promptly and in any event within three months from the relevant date:" see Ex parte Casswell [1990] 2 AC 738.
    (iii) The extent, if at all, to which the hardship, prejudice or detriment that would result from the quashing, results also from the delay. It does not, of course, need to - that was precisely the point decided in Furneaux [1994] 2 AER 652. It is, perhaps, unlikely that it will; the period of delay in applying for leave is likely to be far shorter than the subsequent time taken to bring the substantive challenge to court. But if there is a causal connection between the original delay and the hardship, prejudice or detriment (as, for example, when a developer commits himself to implement a planning permission before it is challenged but after it could have been challenged) then the applicant can hardly complain if that delay weighs heavily against him in the final balance.
    (iv) Whether the applicant can be shown to have misled the court when he obtained leave. If he did, then again he can hardly complain if it weighs heavily against him. Indeed, if the extension of time is shown to have been obtained in bad faith, then the court in its discretion can properly refuse relief irrespective of whether the respondent makes out a case of hardship, prejudice or detriment.

    In short, quite different questions arise with regard to delay depending upon whether the point is raised at the leave stage or at the substantive hearing. At the leave stage (putting section 31(6)(a) aside), the question is whether there is "good reason" for extending time and allowing the substantive application to be made. This involves consideration both of the reasons for the delay and the apparent merits of the challenge; the better the prospects of success, the readier will the court be to extend time even where the delay is unjustifiable i.e. the merits themselves can contribute to or even supply the "good reason". At the substantive hearing, however, the question is whether, in a case where there was initially "undue delay" (which may have been wholly justifiable), the merits of the challenge (by now actually established) should be overridden by the hardship, prejudice or detriment that would result from the grant of relief."

    Popplewell J did not have the benefit of this guidance.

    As regards items (i), (ii) and (iv), there is little to add. There was a considerable lapse of time before the application was made. It is possible to say that the period was excessive and did not satisfy the requisite need for promptness and that to some extent it could be described as "undue". But, in the exceptional circumstances of this case, the degree to which it can be said that there was delay and, in criticism of the Council, that it was undue is only marginal. To treat such marginal delay as decisive of the outcome of this application would be disproportionate. It is, as indeed is the submission of Mr Alesbury, that whilst not decisive on its own it is a factor to be taken into account in conjunction with the other relevant factors in exercising the discretion. As regards Simon Brown LJ's fourth point there is no suggestion that the applicant at any stage misled the Court. Indeed, both in Form 86A and in the supporting affidavit the question of delay was specifically addressed.

    Thus the critical factor in the present case arises under Simon Brown LJ's third head: the hardship, prejudice and detriment to the interested parties, the Howcrofts. No point arises in the present case on whether the making of the orders asked would be detrimental to good administration. Mr Alesbury somewhat faintly argued that it would be. But in the present case it is the Council that is seeking the remedy and it is doing so in what it regards as the needs of good administration - that invalid planning decisions should be declared to be what they in truth are and should be set aside. The delay which has occurred, has not, in respect of the two consents with which we are concerned, invalidated that submission. Secondly, the Howcrofts do not seek to make out any case of hardship. There is no suggestion that they are anything other than persons of substance who own land of value and have already benefitted from realising the development value of the Parrymore 1 land. If they are allowed to develop also the Parrymore 2 land and the Southfields land or if they are paid compensation for the revocation of those consents under s.97, they will enjoy further substantial benefit. But there is no evidence whatever that in any circumstances they will suffer any hardship.

    The relevant question for examination therefore is to what extent their rights will be substantially prejudiced by the granting of the relief sought. In this, the element of the passage of time only has a small part to play and I will examine the affidavit evidence upon which the Howcrofts rely in this connection. However, it is accepted by Mr Mole, as indeed he must, that the literal requirement of the statute is satisfied: there can be no question but that if the applicant and the Council succeed in obtaining the quashing of the relevant consents this would substantially prejudice the presently existing rights of the Howcrofts. At present they have valuable development rights; if the consents are quashed they lose those rights subject to the possibility of applying afresh for new planning consents. On the evidence before this Court, it must be assumed that such applications would not have any realistic chance of success and I will proceed on that basis.

    Prejudice:

    The evidence upon which the Howcrofts have relied in this context is contained in the two affidavits sworn by their son both of which were before Mr Justice Popplewell. The Howcrofts are both elderly, one in his eighties, the other in her mid-seventies. They have been negotiating to sell the Parrymore 2 and Southfields land to a property developer at a sale price of approximately 2 million. The proposed contract is conditional upon existing planning permissions remaining in place and detailed planning permission being granted. It is pointed out that some expense (unspecified) has been incurred by the Howcrofts in these negotiations including legal fees. It is also said tact the Howcrofts have lost the opportunity to negotiate with other developers. This evidence adds nothing to what would be the position in any event. What they are submitting is that they should be entitled to enjoy the benefits, as yet unrealised, of realising the development value of the land and they will lose that if the planning consents are invalidated.

    This submission adds nothing with the basic framework of the case. It is not just that the Howcrofts should enjoy this benefit if they should not have received it in the first place. They have no legitimate grievance on being deprived of what they should never have had. It is also clear that the negotiations with the developers have taken place and continued against a common appreciation extending back at least as far as 1995 that the relevant consents were of questionable validity.

    Next they say that they have been prejudiced in their dealings with Mr Coney. In 1994 after they had sold the Parrymore 1 land and Mr Coney had received his 25% share, the Howcrofts lent him 275,000 to assist him in connection with an unrelated land transaction. It appears that the interest of Mr Coney in the joint venture agreement of November 1992 had been registered as a class C(4) entry in the Land Charges Registry and that the advance of 275,000 to Mr Coney was also registered apparently as a qualification of the earlier charge. In any event it was contemplated that, if not repaid earlier, the sums advanced in 1994 to Mr Coney would be repaid out of the proceeds of the sale, with planning permission, of the Parrymore 2 and Southfields land. Following the publicity surrounding the setting up of the Phelps enquiry and his report, the fortunes of Mr Coney have undergone a serious change and he has since become insolvent and, on his own petition, bankrupt. The Howcrofts no longer have any realistic prospect of recovering any significant sum from him. They have, and had, by the summer of 1996, terminated their agreement with Mr Coney. Indeed it is the case of the Howcrofts that if they are allowed to develop the land or are paid commission in respect of the revocation of the consents, Mr Coney will have no right to share in any sums received.

    Therefore, it appears to be the position that the Howcrofts made an incautious loan to their agent Mr Coney. They have been let down by him. They have reasserted their own rights to enjoy the full value of whatever development potential the Parrymore 2 and Southfields land has. If the planning consents remain on foot, they will enjoy the full benefit of it. If they are declared void, they will lose the whole of that benefit. The loan to Mr Coney is now irrelevant and its recovery or non-recovery is wholly independent of the fate of the planning consents. Therefore it does not provide them with an argument for resisting the relief for which the Council is asking in these proceedings.

    Finally, they submit that they will have suffered prejudice because any fresh application that they may now make will have to be made in changed circumstances and may not be successful. This adds little to the basic point. If the case had been that the existence of bias or apparent bias had not had any effect on the original planning applications and that they should on their own merits have been granted when originally applied for, there would be very strong arguments that no order should be made setting aside the consents. The effect of any such order would be to deprive the Howcrofts of planning consents which they were either clearly or probably entitled. But that is not this case. As explained in the Phelps Report and as is apparent from the summarised history which I have recited earlier in this judgment, the only view that one can take is that these planning applications ought never to have been granted. Indeed the Howcrofts' argument about alternative remedies goes some way to recognizing that that is the case since they submit that the power to revoke ought to be exercised under s.97. To quote from Mr Alesbury's skeleton argument:

    "If the planning permission should not have been granted, the proper course is for the respondent Council responsible for granting them to revoke the permissions using the statutory procedure, not by way of judicial review." (paragraph 18)

    I am prepared to accept that the Howcrofts' chances of making a successful application as of today or even during 1996 would be most unlikely to succeed but that does not differ from the true assessment of their position in 1994.

    The position on prejudice therefore comes back to the basic point which I have identified whether it is just and appropriate that the Howcrofts should be deprived of the benefit of the planning consents without compensation.

    The Merits:

    I will confine myself to the allegations of bias or apparent bias. I will treat what has been said about the deceptions involved in the making of the Southfields application as being no more than corroboration of the other evidence that bias was or may have occurred. That the true identity of whoever it was that was making the application for the Southfields permission on behalf of the Howcrofts was concealed cannot be disputed and the inevitable question arises as to why. It is not necessary to enter upon any question of fraud. If this case had depended upon the substantiation of allegations of fraud against individuals, it would have been appropriate that the Council be required to pursue their claim by an action commenced by writ. Such issues are not normally suitable for judicial review proceedings. The views expressed by Popplewell J in this regard are to be supported.

    But as regards bias or apparent bias, this is properly the subject matter of proceedings for judicial review. It affects the propriety of the decision of the decision maker. (See generally De Smith, Woolf and Jowell: Judicial Review of Administrative Action, 5th edition, chapter 12; and, in relation to planning decisions, paragraph 12-044.) The test which has to be satisfied to establish that the decision is impeachable is that there was "a real danger of bias". (R v Gough [1993] AC 646: Ex parte Dallagilo [1994] 4 AER 139: Ex parte Kirkstall Rally Campaign Ltd [1996] 3 AER 304)

    The evidence of probable bias on the part of Councillor Hoare and Councillor Crossland has been persuasively established. The history which I have outlined provides a strong inference that that was what occurred. There is further evidence which the Council has obtained and which is deposed to on affidavit that there were connections between Mr Coney and the councillors who played a leading part in not only the decisions but in the preparatory steps that led to a favourable consideration of the applications. A close association existed between the relevant persons and the consistency of the conduct of the relevant councillors provides a very strong inference that that conduct was at least influenced if not directed by that association.

    Despite their own interest in resisting this application and the fact that Mr Coney was their agent, the Howcrofts do not present any positive case, or indeed any substantive argument, to answer this inference. They have not directed our attention to any evidence which would have assisted to rebut it. I have looked carefully at the bundles of documents which are before this Court to see whether they provide a basis for questioning the submissions made on behalf of the applicant. There is in the bundle an affidavit dated 15th November 1996 sworn by Mr Coney and copies of certain letters he has written since the publication of the Phelps Report. He disputes the conclusions of the Phelps Report but he provides no answer to them. In particular, he does not respond at all to the questions raised by the form in which the Southfields application was made. I appreciate the seriousness of the conclusion that there probably was bias on the part of councillors induced by the agent acting for an applicant for planning permission. But the Court has to act upon the evidence that is placed before it and in my judgment the only proper conclusion on the evidence available to us is that there was such bias.

    In my judgment the applicant has presented a strong case in support of his application that the two relevant planning consents were rendered invalid by bias or apparent bias and has made out what is necessary for him to establish on an application for the judicial review of the decisions.

    The Exercise of the Discretion:

    Taking into account all these factors and the submissions made by counsel on behalf of the interested parties before us, the Court has to decide whether this is a case in which the remedies for which the applicant asks should be granted. The applicant has established what he needs to establish in order to demonstrate that the two relevant decisions were improperly arrived at and liable to be declared invalid. The counter arguments advanced on behalf of the Howcrofts come down to the critical submission that they ought not to be deprived of the fruits of the consents which they obtained, or certainly not without compensation, and not on the application of the Council itself made so long after the event. In my judgment the arguments of the Howcrofts are inadequate to lead to the conclusion that the applicant should not be granted the remedy for which he asks. If it has been clearly established, as it has in this case, that a planning consent was improperly and invalidly granted, then it should, in principle, be declared to be void. It is not appropriate that, other things being equal, the Council should be required to pay compensation as a condition of achieving that result. The answer would be different if the planning consent was one which should in any event have properly been granted or where at least it appears that that might be the case. Similarly the position would be different if there had been a material change of position on the part of an affected party on the faith of the consent being valid. Each case would depend upon its own facts and an evaluation of the relevant factors overall.

    The Howcrofts have no effective answer to this conclusion. There has been no material change in their position in relation to the Parrymore 2 and Southfields land. The planning consents ought, on the evidence available to us, never to have been granted. The planning consents which they obtained were not consents to which they were entitled. They were obtained by or through the person whom they selected as their agent, Mr Coney, who was intimately involved in the events which have given rise to the invalidity of the consents. There is nothing objectionable in principle to the Council having instigated these proceedings nor has the lapse of time altered the balance of justice as between the Council and the Howcrofts. In my judgment justice requires that, as between the Council and those whom the Council represents on the one hand and the Howcrofts on the other, these consents should be declared void and that it would be unjust if the courts were to refuse to do so or were to require the Council to pay compensation to the Howcrofts as a condition of achieving that result.

    It follows that I consider that this appeal should be allowed and the dismissal of the application by Mr Justice Popplewell set aside. I would grant relief in accordance with the terms prayed in the applicant's Form 86A subject to any points which counsel may wish to raise upon the detail of the order.

    LORD JUSTICE MILLETT: I agree.

    LORD JUSTICE OTTON: I also agree.


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