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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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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:
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:
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:
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:
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.
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.