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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alfred McAlpine Homes (Yorkshire) Ltd v Kirklees Metropolitan Council & Anor [1999] EWHC Admin 586 (23rd June, 1999)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/586.html
Cite as: [1999] EWHC Admin 586

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ALFRED McALPINE HOMES (YORKSHIRE) LIMITED v. KIRKLEES METROPOLITAN COUNCIL and SECRETARY OF STATE FOR ENVIRONMENT, TRANSPORT AND REGIONS [1999] EWHC Admin 586 (23rd June, 1999)

IN THE HIGH COURT OF JUSTICE CO 1387/1999

QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST )

Royal Courts of Justice
Strand
London WC2

Wednesday, 23rd June 1999

B e f o r e:


MR JUSTICE JACKSON


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ALFRED McALPINE HOMES (YORKSHIRE) LIMITED

-v-

KIRKLEES METROPOLITAN COUNCIL
and
THE SECRETARY OF STATE FOR THE ENVIRONMENT,
TRANSPORT AND THE REGIONS

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(Computer-aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
180 Fleet Street, London EC4A 2HD
Telephone No: 0171-421 4040/0171-404 1400
Fax No: 0171-831 8838
Official Shorthand Writers to the Court)
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MR A CREAN (instructed by Walker Morris, Leeds LS1 2HL) appeared on behalf of the Applicant.

MS STOCKLEY (instructed by the Legal Department, Kirklees Metropolitan Council, Huddersfield HD1 2TG) appeared on behalf of the First Respondent.

The Second Respondent did not attend and was not represented.

J U D G M E N T
(As Approved)
Crown Copyright

Wednesday, 23rd June 1999
JUDGMENT

1. MR JUSTICE JACKSON: This action relates to the Kirklees Unitary Development Plan, which the First Respondent, the Kirklees Metropolitan Council, purportedly adopted on 5th March 1999. By its notice of motion, dated 7th April 1999, the Applicant seeks the following relief, namely an order that:


"1. Policy D3 and the relevant text in the [Kirklees Unitary Development Plan] be quashed to the extent that it identifies land at Rumble Road, Dewsbury as being proposed for Urban Greenspace.
"2. Policy H6 and the relevant text in the above mentioned plan be quashed to the extent that it fails to identify land at Rumble Road, Dewsbury as being proposed for new housing development;
"3. ...[various ancillary ancillary matters]"

2. That is the final relief which the Applicant seeks, and the Applicant's entitlement to that relief remains to be determined on a future occasion. Today, the Applicant seeks interim relief, namely an order that the following policies and the relevant text of the First Respondent's Unitary Development Plan (UDP) be suspended to the extent that they identify, or fail to identify, the claimant site at Rumble Road, Dewsbury, pending final determination by the court of the claimant's challenge. The particular parts are policy D3 and the relevant text in the First Respondent's Unitary Development Plan, to the extent that it identifies the claimant site as being proposed for Urban Greenspace.

3. The background to this litigation and to the present application for interim relief is as follows: the Applicant is a well-known house building company operating in the north of England and it desires to carry out residential development at Rumble Road in Dewsbury. The recent planning history of that site is as follows: in the deposited draft of the Kirklees Unitary Development Plan, that site was identified as site H10.32, a site for residential development. Local objections were voiced to that residential development. The Respondent Council acceded to those objections and it proposed to change the designation of that site to Urban Greenspace. The Applicant objected to that proposed change to the UDP and a public local inquiry was held.

4. At the end of the inquiry, the Inspector produced a report which favoured the Applicant. In relation to the site (the subject of this litigation) the Inspector's conclusions are set out in section 17.34 of his report -- a detailed section spanning nearly three pages -- setting out his reasons why the site should be used for housing rather than Urban Greenspace. The Respondent Council did not accept that view of the Inspector.

5. The evolution of the Council's decision is the subject of voluminous documents before the court. Of particular importance is a meeting of the Respondent's planning and economic development committee held on 1st April 1998. There is a witness statement of Mr John Auterson, the policy manager in the planning service of the Respondent Council, which describes the committee meeting on 1st April and outlines the material before the committee.

6. Mr Crean, for the Applicant, has helpfully drawn my attention to paragraphs 10 to 17 of that witness statement, in particular paragraph 12. Paragraph 12 reads as follows:


"At the Committee meeting H10.32 was debated. The Committee Administrator's notes indicate comments from Councillor Beetham that the Inspector's recommendation should be rejected as there would be loss of amenity and the housing was not justified. Councillor Fox agreed, appearing to comment that the whole site should act as a buffer zone. My own recollection is that Councillor Beetham also referred to the expectation of additional housing sites coming forward in Dewsbury, as described in my note to the Chair. The Committee resolved not to accept the recommendation [that is the recommendation of the Inspector], and to allocate the site as urban green space."

7. I also refer to paragraph 15 of the witness statement, in which Mr Auterson says as follows:


"The Committee, as they were entitled to do, attached greater importance to keeping the site open than did the Inspector, or for that matter than I had done. In my judgement they took the view that this was sufficient to override the admitted physical potential of the site for development and its proximity to existing development and facilities."

8. The Applicant challenges the Council's decision on a number of grounds which are set out in the notice of motion and could be taken as read to avoid the need for extending this judgment unnecessarily by reading out the first set of particulars in the notice of motion, spanning pages 2, 3 and 4 of the notice of motion.

9. The essential complaint is that the Council rejected the views expressed by the Inspector. Those views were backed up by detailed reasoning. There was no good ground for rejecting either the Inspector's reasoning or his conclusion, and furthermore such reasons as appear from Mr Auterson's affidavit do not do justice to the Inspector's reasoning and indicate that the Council have not given proper consideration to those reasons.

10. In relation to its claim for substantive relief, the Applicant, understandably, places reliance upon the judgment of the Court of Appeal in the case of Miller and others v Wycombe District Council [1997] JPL 951, and the Applicant places particular reliance upon the reasoning of the Court at pages 955 to 956 of the report.

11. However, today's application is for interim relief and I have already indicated the interim relief which is sought. This court's jurisdiction to grant interim relief arises under section 287(2) of the Town and Country Planning Act 1990. Section 287(2) provides that:


"On any application under this section the High Court
"(a) may by interim order wholly or in part suspend the operation of the plan, or, as the case may be, the alteration, or replacement, either generally or in so far as it affects any property of the applicant, until the final determination of the proceedings;
"(b) if satisfied that the plan, or, as the case may be, the alteration, or replacement is wholly or to any extent outside the powers conferred by Part II, or that the interests of the applicant have been substantially prejudiced by the failure to comply with any requirement of that Part or of any regulations made under it, may wholly or in part quash the plan or, as the case may be, the alteration, or replacement either generally or in so far as it affects any property of the applicant."

12. The principles upon which this court should proceed when dealing with an interim application under section 287(2) of the Act are reviewed by McCullough J in Terry Adams Limited v Bolton Metropolitan Council [1996] 73 P&CR 446. The relevant principles are set out by McCullough J at page 451 of the report:


"The grant of interim relief is discretionary, i.e. it is a matter for the judgment of the court. An application under section 287 of the 1990 Act may be made without leave. Unlike an applicant for judicial review, an applicant under section 287 cannot assert that the merits of his case are such as to have satisfied the court that he has an arguable case.
"Clearly, the first question is whether the company does have an arguable case, i.e. that there is some real prospect that the court will be persuaded that the respondent authority acted outside the powers of the Act or that the company's interests have been substantially prejudiced by some failure on the part of the authority to comply with the requirements of the Act or the regulations made thereunder.
"Additionally, the court must consider whether, in the event that one or other of these requirements is met, there is a real prospect that the court will think it right to grant the company the relief they seek, i.e. the quashing of Policy WD2. Should these requirements be satisfied, the court will have to consider what is conventionally called the balance of convenience, which means it will have to decide whether it would be better, in all the circumstances, to grant or withhold interim relief. This will involve considering, as best one can, the likely consequences of each course and comparing them.
"Factors to be taken into account will include the court's view about the likely outcome of the case, since it is undesirable to perpetuate, or to bring about by interim order, a state of affairs which does not accord with the eventual judgment of the court. The court will want to be consider the extent to which the company is likely to be disadvantaged if interim leave is withheld.
"Also relevant is the fact that the decision under challenge is in the field of public law. It was made by a local authority in the exercise of its public function. The policy is of interest to the general public, to whom the respondent authority owes duties, as it is to other authorities whose decisions may be influenced by the presence or absence of Policy WD2 in the Bolton Unitary Development Plan."

13. Ms Stockley, for the Respondent, by her skeleton argument -- which I have not called upon her to elaborate orally -- realistically concedes that the first question should be answered in the affirmative. In other words, the Respondent accepts that the Applicant has some real prospect of success.

14. However, the merits of the underlying case have not faded entirely from the debate, because Mr Crean, for the Applicant, urges upon me that so strong are the points in his favour that his clients are very likely to succeed in their application at the end of the day. Ms Stockley, in her skeleton argument, does not accept that. She accepts a realistic prospect of success, but maintains that there are substantial points in her favour and one certainly cannot say that there is a probability of the Applicant succeeding.

15. I have listened to Mr Crean's careful arguments in support of the substantive case. He draws my attention to the Inspector's reasoning in section 17.34, to the limited information about the Respondent's reasoning in Mr Auterson's affidavit, and to the decision in Miller. It is no disrespect to Mr Crean's able advocacy if I say that, at the end of the day, I am not persuaded that there is a probability that the Applicant will succeed. This seems to me to be one of those cases which could go either way.

16. For present purposes, I am going to take the Applicant's prospects of success as 50/50. I regard that as the best assessment which can be made at this stage. It is undesirable that I should embark upon an analysis of the strengths and weaknesses of the Applicant's case or the Respondent's defence which will be ventilated at the eventual hearing of this matter. Clearly, that kind of analysis must be undertaken by the court dealing with this case substantively at the end of the day, unembarrassed by any observations of mine made at an earlier stage in the litigation when matters are dealt with more shortly. I, therefore, say no more about the first of the factors identified by McCullough J, save that I regard the case as being an open one which could go either way.

17. I now come to the second factor identified by McCullough J: the extent to which the company is likely to be disadvantaged if interim relief is withheld. At this stage of my judgment, I must consider, on the one hand, the consequences of relief being granted and then the Applicant failing, and on the other hand, the consequences of relief being refused and the Applicant ultimately succeeding.

18. Here, it seems to me that the balance of convenience is very clear. If I grant relief now and make the interim order which is sought, the great probability is that planning permission will be granted before this matter finally comes to trial. Mr Crean very realistically accepts that even if he loses at trial, there is no realistic likelihood of his planning permission thereafter being revoked, because the compensation which the Council would have to pay would be very substantial. So, if the Applicant succeeds at this time and loses at the end of the day, it is clear that the Council, and indeed the public interest, suffer substantial prejudice.

19. Now let me look at the other side of the coin: if the Applicant fails today but succeeds at the end of the litigation. I accept that the present planning application is likely to be refused but once the Applicant has obtained victory in this litigation, then the Applicant can make a fresh application for planning permission which, it appears to me, would have every prospect of success.

20. Mr Crean makes the ingenious point that once the Unitary Development Plan has been adopted in a form which he submits is correct, it would not be open to McAlpine Homes to refer to the Inspector's report. The answer to that point seems to me to be this: at the end of the day, it may very well be that all McAlpine Homes could substantively point to is the Unitary Development Plan, corrected, if they are successful in this litigation, in the manner in which they seek to have it corrected. But that position would be precisely the same if the Unitary Development Plan had been adopted in March 1999, in the form in which the Applicant says that it should have been adopted. At the end of the day, if the Applicant wins in this litigation, the Applicant can no doubt, in support of its planning application, refer not only to the Unitary Development Plan after it has been corrected by this court, but also to the reasoning of this court, which as it seems to me would inevitably refer to and probably quote the material parts of section 17.34 of the Inspector's report following from the inquiry into the draft UDP.

21. So far as the public interest is concerned -- the third of McCullough J's factors -- I have really dealt with this in the course of dealing with the second factor. It does not seem to me to be in the public interest that by means of interim relief the Applicant should obtain the substantial benefit which it seeks in this litigation if, at the end of the day, it turns out that the Council's conduct cannot be impugned.

22. For all of these reasons, I am quite satisfied that the balance of convenience favours the Respondent. Accordingly, I dismiss this application for interim relief and in doing so I thank both Counsel for their very helpful skeleton arguments, and Mr Crean for his very helpful oral argument.




23. MS STOCKLEY: My Lord, in those circumstances I make an application for the First Respondent's costs.


24. MR JUSTICE JACKSON: What do you say, Mr Crean?


25. MR CREAN: I oppose that, my Lord. This is an interim application, but, of course, it is within the context of the state of affairs brought about by the decision-making process of the Council, which is still under attack. At the end of the day, if we succeed then it would be, in my submission, iniquitous to force the costs of this hearing on to the Applicant. In those circumstances, the order which I suggest is the costs in the cause --


26. MR JUSTICE JACKSON: I need not trouble you, Ms Stockley. I take the view that in this matter cost should follow the event, therefore the Applicant must pay the First Respondent's costs.


27. Is there anything else I need to deal with? Thank you both very much.


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© 1999 Crown Copyright


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/586.html