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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Borough Of Croydon v Secretary Of State For Environment & Anor [1999] EWHC Admin 748 (28th July, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/748.html Cite as: [1999] EWHC Admin 748 |
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1. MR
JUSTICE KEENE: These proceedings concern a site adjoining the Purley Way,
Croydon, which falls within the area for which the Applicant is the Local
Planning Authority. The Applicant seeks to challenge two decisions made by a
Planning Inspector arising out of a planning appeal in relation to the site
brought by the second Respondent, Lex Service Plc. By an application for
judicial review, the Applicant wishes to have a declaration that a decision by
the Inspector not to adjourn a public inquiry into the appeal was unlawful. By
an application made under section 288 of the Town and Country Planning Act 1990
("the Act"), a challenge is also mounted to the ultimate decision of the
Inspector to allow the planning appeal. It is agreed by all parties that the
attack on the decision not to adjourn cannot be brought under section 288 but
only by way of judicial review: see
Co-operative
Retail Services Limited v Secretary of State for the Environment
[1980] 1 WLR 271.
2. On
30th January 1998, the second Respondent submitted an application for
permission to develop the site for a used car sales office, workshops, canopy
and associated car parking. The Local Planning Authority failed to determine
the application within the requisite period and an appeal was lodged on 6th
April 1998. Shortly afterwards the Planning Inspectorate fixed the dates for a
public inquiry. It was to begin on 2nd September 1998. That date was
confirmed by a letter from the Inspectorate dated 5th May 1998, that is to say
approximately four months in advance of the inquiry date. It is not suggested
by the Applicant Authority that that period did not allow it adequate time to
prepare its case, nor did it object at the time to the date.
3. However,
the planning officer who was dealing with this matter within the planning
department did not move quickly to make such preparations. It seems that he
misinterpreted a direction given by the Highways Agency under Article 14 of the
Town and Country Planning (General Development Procedure) Order 1995. That
article empowers the Secretary of State and those acting on his behalf to give
a direction restricting the grant of permission by a Local Planning Authority.
That is what happened here. But the officer seems to have treated the
direction as preventing this matter even going to the relevant Committee for
its consideration. Ms Macpherson, who appears for the present Applicant,
accepts that that is what happened and that the officer was in error. It is
commonplace, when such a direction is given, for the planning application to be
reported to the Committee so that the Committee can deal with the other
planning merits, subject always to the prohibition on it granting permission,
and this is particularly so when an appeal is pending.
4. In
any event, I am told that by July 1998 the Local Planning Authority had put
arrangements in hand to prepare for the inquiry. By then a second application
had been submitted by the second Respondent for a very similar development with
only very limited differences. Both applications were reported to the Plans
Sub-Committee meeting on 6th August 1998. The Sub-Committee had, I am told,
power to refuse permission but, as the proposal was a departure from the
development plan, the Sub-Committee had no power to grant permission. But the
purpose of reporting the first application to the Sub-Committee is quite clear
from the officers' report. In it the members were told that the appeal was
scheduled to be heard at an inquiry on 2nd and 3rd September, and that:
5. It
is agreed that it was open to the Sub-Committee to decide to contest the
appeal. Ms Macpherson says the officers expected the members to agree with the
recommendation in the report which was to contest the appeal and to refuse
permission on the second application.
6. In
fact, the Sub-Committee did nothing of the sort. It resolved that the appeal
application be not determined, that is to say by the Sub-Committee. The reason
for this can be discovered readily enough by looking at the decision it made
on the second application. There it resolved to refer it to the full Committee
with a recommendation to grant permission. So one can readily see why the
members did not endorse the officers' recommendation to contest the appeal
which was to be heard on 2nd September.
7. It
seems that immediately after the Sub-Committee meeting on 6th August there was
some discussion between a representative of the second Respondent and a
planning officer about the possibility that the inquiry might be adjourned, but
it seems clear that there was no agreement to that effect. In any event,
according to an affidavit sworn herein by Peter Kenneth Weatherhead, the second
Respondent submitted its pre-inquiry statement on 19th August 1998 and its one
proof of evidence on 24th August 1998.
8. The
following day an officer of the planning department wrote to the Planning
Inspectorate seeking an adjournment or postponement of the inquiry. That
letter seems to have been sent by fax, because by a faxed letter also dated
25th August 1998 the second Respondent's agents strongly opposed any
adjournment, pointing out that the application for permission had been with the
Local Planning Authority since January and that the inquiry had been fixed
since 5th May. The Planning Inspectorate refused to postpone the inquiry, but
stated that it was open to the Local Planning Authority to ask the Inspector to
adjourn it.
9. That
is what the Applicant did on 2nd September 1998. According to notes taken on
behalf of the second Respondent, a solicitor from the Council's legal
department sought an adjournment for 8 weeks so that the matter could be
brought before the full Committee in late September and the full Council in
October. The Inspector's decision letter confirms that an 8-week adjournment
was sought. It was pointed out by the solicitor that the officers had no
authority to contest the appeal as things stood. They could not call witnesses
or cross-examine and so the Inspector would not have the assistance of the
Local Planning Authority in determining the issues. Counsel for the second
Respondent vigorously opposed any adjournment, pointing out that the date had
been fixed since 5th May and that the Local Planning Authority had had time to
take the application to Committee earlier than August. He also stressed that
the uncertainty over highway matters need not have prevented a full
consideration of other aspects of the appeal proposal by the Council.
10. The
Inspector was evidently concerned about the situation which had arisen. He was
told that the Sub-Committee had been minded to grant permission and that he
would have the officers' report to that Sub-Committee to assist him. He
expressed some anxiety about whether the full implications of the employment
aspects of the case would be picked up in the absence of the Local Planning
Authority. But eventually, after the lunch adjournment, he decided the inquiry
should go ahead.
11. In
his eventual decision letter he dealt briefly with his reasons. After
referring to the submissions of both sides he said:
12. On
this issue of the decision not to adjourn, it is submitted on behalf of the
Applicant that the Inspector acted unfairly in refusing an adjournment. Ms
Macpherson emphasises that, when dealing with procedural matters of this kind,
the test is one of fairness rather than of
Wednesbury
unreasonableness. I note that that is not in dispute.
R
v Panel on Taker-Overs and Mergers, ex parte Guinness Plc
[1990] 1 QB 146 rejected a test of
Wednesbury
unreasonableness,
pointing out that the courts are able to act as the arbiter of what is
procedurally fair. That approach has been followed in many cases, including
L
v Royal Borough of Kensington and Chelsea
[1997] ELR 155, upon which Ms Macpherson relied.
13. Having
said that, it has also to be recognised that a decision whether or not to
adjourn is first and foremost a matter for the tribunal, inferior court or
Inspector in question. In
ex
parte Guinness
itself, Lord Donaldson MR, at page 178A stated:
14. Lloyd
LJ (as he then was) adopted a similar approach at page 183H. In the planning
context, the courts have emphasised that it is not enough to justify judicial
intervention that the court itself would have decided differently on the
adjournment application. The court must be confident that the decision was
clearly wrong: see
R
v Secretary of State for the Environment, ex parte Mistral Investments
[1984] JPL 516, following
ex
parte Bullen
,
a decision of the Divisional Court, dated 7th May 1976 (unreported). So the
test is one of fairness, but the court should only intervene where it is
satisfied that the decision was wrong in principle or demonstrably and clearly
unfair.
15. With
that test in mind, I revert to the case for the Applicant. In support of the
argument that the Inspector here acted unfairly, it is said that he decided not
to adjourn purely on the basis that he would have enough information for an
informed decision on the planning merits to be made. It is contended that he
did not rely, when making his procedural decision, on the Council's conduct.
Therefore, one can use his failings in the decision on the merits to deduce
that he was wrong in his conclusion that he had enough information.
16. Reference
is then made to the decision of Webster J in
R
v Dairy Produce Quota Tribunal, ex parte Lifely
[1988] Est. Gaz. LR 79, where the court placed weight on the absence of any
public interest in favour of the refusal to adjourn on the facts of that case.
It was one where the refusal of an adjournment had been based on the personal
inconvenience to the members of the tribunal which would have resulted. In the
present case it is submitted that the only public interest pointed towards
allowing an adjournment, that interest being in the Local Planning Authority
giving evidence.
17. On
behalf of the Secretary of State, Mr Karas submits on this issue that the
Inspector had to have regard to the interest of all parties and to the
efficient administration of the planning system. He contends that there is a
public interest in avoiding unnecessary delay in the making of planning
decisions. In addition, it is said that where a party has the opportunity to
participate and fails to take that opportunity, it is not unfair if he
subsequently finds that he cannot participate. That, it is said, aptly
describes the situation into which this Local Planning Authority put itself.
Mr Karas argues that the Inspector was entitled to conclude that he would have
enough information to arrive at a proper decision on the planning merits, and
he resists the suggestion that one can look at the ultimate decision to see if
the procedural decision was fair or unfair. He points out that one can get
decisions on the substance of a case which are open to challenge, even where
there has been no unfairness in the procedures leading up to such decisions.
18. Mr
Katkowski QC for the second Respondent submits that as a matter of principle
one should judge the facts as they would have appeared to the Inspector at the
time, and not retrospectively. In addition, any other approach would mean
waiting until the substantive decision appears, at which point there is a
statutory prohibition on quashing the substantive decision by way of judicial
review because of such a procedural failing. One would therefore be
encouraging a highly unsatisfactory state of affairs.
19.
He contends that the problems in the present case were of the Council's own
making, and that further delay would have been both prejudicial to his clients'
interests, since they wanted this development, and contrary to the general
public interest. It is also stressed that the Inspector clearly considered the
relevant aspects of the application to adjourn with great care and at
considerable length, so that most of the opening day was consumed by this
matter. In those circumstances, including the fact that the Council had never
resolved to oppose this development, the Inspector, he says, cannot be
characterised as wholly wrong.
20. I
have already indicated my acceptance of the proposition that the test on this
first issue is whether the Inspector's refusal to adjourn was wrong in
principle or demonstrably and clearly unfair. In applying that test, it seems
to me that the conduct of the complainant must normally be relevant. As Mr
Karas in effect says, if the complainant has brought the problem on himself, he
may be in no position to argue unfairness. I cannot accept the Applicant's
contention that the Inspector here ignored the past conduct of the Local
Planning Authority. In his decision letter, he expressly refers to the
submissions made on behalf of the second Respondent that the Council had known
about the inquiry for a considerable time and that it could have considered the
non-highway aspects. It is to be observed that, in the affidavit filed in
support of this application for judicial review, it is accepted that the
Inspector there correctly summarised those submissions by counsel for the
second Respondent, and it is said that "the Inspector was persuaded by his
arguments". Ms Macpherson accepts that it was relevant whether the Authority
should
have been ready by 2nd September.
21. It
seems to me that the Local Planning Authority was almost entirely responsible
for the predicament in which it found itself. First, there had been delay on
its part in preparing for the inquiry as a result of an officer's
misunderstanding of the effect of the direction issued by the Highway Agency.
That probably was not a fatal delay, but this matter could readily have been
taken to Committee before August 1998. Secondly, it was the decision of the
members of the Sub-Committee on 6th August 1998 which ultimately created the
difficulties for this Applicant. The Sub-Committee members were expressly told
that they had to decide whether or not to contest the appeal because the
inquiry date was fast approaching. Their decision, in effect, was not to
contest it, which came as a surprise to the officers. But it was open to them
to have decided otherwise and in those circumstances the Local Planning
Authority would presumably have appeared at the inquiry and played a full part.
The Sub-Committee chose a different course of action, and it was that decision
which put the Authority, or at least its officers, into difficulties. This is
a case where the Authority, through one of its Sub-Committees, tied its own
hands.
22. Of
course, it was nonetheless right and proper for the Inspector to consider
whether he was left in such an invidious position that he had to adjourn,
simply to obtain enough information for a proper decision. He undoubtedly
asked himself that question. He had the officers' report to the Sub-Committee;
he had a proof of evidence from the second Respondent's expert witness; he had
the relevant parts of the UDP, setting out the policies which had led to the
officers' recommendation of refusal. He knew that he would be conducting a
view of the area and of the site, and he had the other material to which he
refers in paragraph 4 of his decision. Moreover, he had to consider the
adequacy of this information in the context of his knowledge that the Council's
own Plans Sub-Committee had decided that a scheme such as this should be
recommended for grant of permission.
23. In
all those circumstances I find it impossible to say that his decision that he
would have adequate information was one to which he could not properly have come.
24. He
was undoubtedly conscious that there is a public interest in ensuring that
sound planning decisions are made. But there is also a public interest in
avoiding unnecessary delays to the making of such decisions, as Ms Macpherson
acknowledged in the course of argument. I reject the suggestion that such
delay is merely a matter of private concern to the developers. Were it so, the
first Respondent would not have had, for many years, policies designed to
ensure that such planning decisions are made promptly. That is something which
is in the public interest. The situation is, therefore, quite different from
that being dealt with in the case of
ex
parte Lifely
.
It is interesting to observe that, during the argument over an adjournment at
the inquiry, the solicitor for the Local Planning Authority is recorded as
conceding that the Inspector would not be doing anything wrong were he to
proceed with the inquiry, but that he might reach a decision on the appeal
which was open to challenge.
25. It
is difficult to see how it can be right to judge the fairness of such a
procedural decision by looking at the strengths and weaknesses of the eventual
decision on the merits. That would be judging the procedural decision with the
benefit of a hindsight which was not available to the decision-maker. It
cannot properly illuminate the issue of the fairness or otherwise of that
decision. Nonetheless, I will revert to this aspect when I have considered the
arguments on the section 288 application simply as a precaution. Subject to
that point, although the Inspector was obviously put into a difficult position
by the Local Planning Authority's conduct, I conclude that he acted fairly in
refusing an adjournment. Certainly it has not been established that his
decision was wrong in principle or demonstrably and clearly unfair.
26. I
turn therefore to the section 288 application. In his decision letter, the
Inspector allowed the appeal and granted permission for the proposed
development. He did so, having earlier identified four issues in the case.
Only the first of those is relevant to the present proceedings, because it
relates to the objection raised by the officers in their report to the
Sub-Committee. The Inspector defined the issue as the effect of the proposal
on the use of land for industrial and warehouse purposes in Croydon. In their
report, the officers had recommended that the appeal be contested on the ground
that:
27. This
issue arose because the site was located in an area known as the Purley Way
Industrial Area North. Under Policy SP29 in the Council's UDP, provision will
be made for business, general industry and warehousing in appropriate
locations. Policy EM6 dealt specifically with areas such as this, stating:
29. It
is to be noted that in the UDP "business use" is defined as Class B1 uses, that
is to say as office (other than Class A2), light industrial, and research and
development uses, capable of being carried out in any residential area without
harming residential amenity.
30. The
appeal side was part of a former British Gas depot. It was by this time
largely cleared of buildings and structures. It had an area of just over 1
hectare or about 2 1/2 acres. It fronted onto the A23 Purley Way. To the south
of it was the remainder of the British Gas depot land, some 0.6 hectares or
about 1 1/2 acres in area. In his decision letter, the Inspector set out the
terms of the policies SP29, EM6 and EM9 and referred to the terms of the
officers' objection. He then went on as follows at paragraphs 9 and 10 of his
decision:
31. He
then dealt with the characteristics of the Purley Way Industrial Area North,
including its fragmentation by retail uses, and made reference to the Daewoo
car sales centre. This was located a short distance from the appeal site, also
fronting Purley Way and within the same industrial area. The Inspector noted
that it had been granted planning permission in 1998. He said at paragraph 11:
32. He
then referred to Policy EM9, whereby permission would be refused for
development involving the loss of industrial, warehouses and business uses. He
commented as follows at paragraphs 12 and 13:
33. The
first point made on behalf of the Applicant is that the Inspector failed to
make clear whether he regarded the proposed development as according with the
development plan. Ms Macpherson refers to section 54A of the Act which states
that:
34.
She accepts that, in the light of decision in
City
of Edinburgh Council v Secretary of State for Scotland
[1997] 1 WLR 455 and other authorities, a decision-maker need not expressly
state whether the proposal accords with the development plan, so long as one
can see from his decision what he concluded on this aspect. She also accepts
that an Inspector need not follow any common or set pattern in his decision,
but can make an overall assessment of the development plan and other
considerations, as appears from the speech of Lord Clyde in the
City
of Edinburgh
case. However, it is submitted that it is unclear at paragraph 9 of the
decision whether the Inspector here is saying that the proposal falls within
EM6 or rather that the wide range of uses in that policy is a material
consideration. Hence the decision is ambiguous on that point. It is also
contended that he failed to give proper consideration to Policy EM9, which was
at the heart of the officers' policy concerns, and instead came to it after
considering Policy EM6.
35. So
far as EM6 is concerned, the Inspector's finding seems to me to be reasonably
clear. He does not suggest that the proposed mixed use - part retail, part
industrial and, as the Applicant concedes,
sui
generis
- actually falls within the language of EM6. His comments at paragraph 9
emphasise the wide range of uses permissible under that policy, embracing, as
it does, office uses, industry and warehousing, and because of that he
concludes that the proposal should not be rejected "for that reason alone",
that is to say simply because car sales do not come within the policy.
Likewise, his reasoning in paragraphs 12 and 13 about Policy EM9 is
sufficiently evident. He does not suggest that the proposal escapes conflict
with that policy, because he finds that it would limit the potential for
reinstating the preferred uses. But he concludes that EM9 in this instance is
not of such weight as to be a determining matter. That conclusion can be seen
to be based on his assessment of other material considerations. The contention
that he failed to give proper consideration to EM9 cannot be sustained. I also
accept the submissions of both Respondents that the sentence at the end of
paragraph 8 of his decision, "... The proposed use would be for the sale of
cars, which would not comply with the designated purpose of the site", is an
expression of his view, not the record of the Council's view. That makes it
even clearer that he was finding that the scheme did conflict with the policies
and that it was because of other material considerations that he allowed the
appeal.
36. The
second argument advanced on behalf of the Applicant under the section 288
challenge is that the Inspector should in the circumstances have adopted a more
inquisitorial approach. Ms Macpherson relies upon the Court of Appeal decision
in
Dyason
v Secretary of State for the Environment
(1998)
2 PLR 54. That was a case concerning an informal hearing, where, as a matter
of procedure, there was no cross-examination. The court noted that,
nonetheless, conflicting propositions and evidence would often be placed before
the Inspector. In those circumstances, said Pill LJ at page 61:
38. Ms
Macpherson argues that those points are applicable to the present case, because
of the absence of the Local Planning Authority from the main part of the
inquiry. Consequently the Inspector should himself have tested the evidence by
questioning the expert witness for the then Appellant more thoroughly,
including asking more questions about industrial land supply and vacancy rates
within the Borough. He should also have taken the report on that topic by
consultants advising the Local Planning Authority, a report which was
available at the inquiry. His conclusions on industrial land availability were
not, it is said, borne out by the evidence.
39. In
support of this submission, attention is also drawn to two factual matters
where it is said that the Inspector fell into error in his decision letter.
The first concerns employment density. At paragraph 10 of his decision, he
referred to a survey put in evidence by the second Respondent's expert witness,
a survey which the Inspector said indicated that the employment density created
by the proposed development would be towards the top of the range typically
expected with modern industrial uses. Ms Macpherson points out that the
proposed scheme was expected to produce 43 full-time jobs and 9 part-time ones,
and that part of the evidence from the expert witness showed that this gave a
workers to hectare ratio over the site of 45.6. This was within the range for
B2 general industrial uses but towards the bottom of the range, not the top.
The range for site employment density on general industrial sites was 40 to 74
workers per hectare.
40. Secondly,
the Applicant criticises a sentence in the decision letter where the proposal
was compared to the Daewoo centre. I have quoted the relevant passage earlier.
Ms Macpherson contends that the Inspector was wrong to describe the appeal
proposal as "having a similar scale" to the Daewoo centre, because the latter
was on a smaller site but produced 50 jobs. It was in employment policy terms
more acceptable.
41. It
is convenient to consider those factual matters first. As to employment
density, Ms Macpherson is undoubtedly right if one looks solely at workers per
hectare. But the survey to which the Inspector referred also dealt with this
topic in terms of areas of built floorspace per worker. On that basis the
appeal proposal produced a figure of 18.1 square metres per employee, which did
compare favourably to national and regional figures set out in the evidence
from expert witness. The Inspector's comment that it would be towards the top
of the range for modern industrial uses seems to have been based on that
evidence. Whether that is the most appropriate measure of density of
employment is not a matter for this court, and in any event the evidence had
drawn attention to the issue of site coverage by buildings. I am not persuaded
that this was a factual error by the Inspector - it reflected evidence before
him.
42. It
is true that the Daewoo car sales centre occupies a smaller site. The evidence
shows that its site area is about two-thirds that of the appeal side. But the
number of jobs produced there, at 50, is broadly comparable to the numbers
expected at the proposed development. The Inspector commented that the appeal
proposal was not identical to that permitted at that other site, so he was
clearly aware that there were differences. I cannot see that to describe the
two developments as being of a similar scale indicates an error of fact on his
part.
43. I
return to the submission about the need for the Inspector to have adopted an
inquisitorial role. No one suggests that an Inspector is required to engage in
a search for material not put before him. What the
Dyason
case establishes is that, when there is an informal hearing which, as a matter
of procedure, normally excludes cross-examination, the Inspector has to play an
enhanced role in order to resolve conflicts of evidence. In addition, such an
Inspector must not arrive at a finding adverse to a party without having put
the point to the party in question or his witness, and that is what happened in
the
Dyason
case.
44. There
is force in the point made by Mr Katkowski, on behalf of the second Respondent,
that
Dyason
was dealing with a different situation from that facing the Inspector in the
present case. This was an inquiry where procedurally there was an opportunity
for cross-examination
inter
partes
but where one side put itself into a position where it could not avail itself
of that opportunity. There were no "conflicting propositions", of the kind
referred to in
Dyason,
to be explored, since the Local Planning Authority had not resolved to oppose
the proposal. Undoubtedly in such a situation the Inspector does need to
satisfy himself that he has reliable and adequate evidence and will normally
ask some questions to achieve that. But he does not have to achieve some form
of substitute cross-examination through his own questions.
45. In
the present case there is a note of the proceedings exhibited to an affidavit
before the court. It shows that the Inspector asked a number of questions of
the expert witness, Mr Weatherhead, covering the comparability of the Daewoo
centre, the UDP policies and the possible need to safeguard industrial and
warehousing land. Given the context of his knowledge that the Local Planning
Authority's own Sub-Committee had resolved to recommend a grant of permission
for a very similar development of this site, the extent of his questioning
cannot be judged to have been inadequate.
46. On
the specific point of land supply and vacancy rates, the Inspector obtained
information as he was entitled to do from his site inspection, noting in
paragraph 13 of his decision that there appeared to be other vacant land and
buildings in this industrial area. He was also influenced by the fact that the
improvement to the access proposed in the appeal scheme could mean that the
remainder of the former British Gas land would become available for uses
consistent with EM6. Permission here could therefore in a practical sense make
a contribution to industrial land supply in that way. No doubt he could have
been provided with further information on industrial land supply, had the Local
Planning Authority been participating in the inquiry, but that does not of
itself render his decision open to attack. It may be that the Council officers
could have given him the consultants' report, but they seem to have been
dissuaded from doing so by the advocacy on behalf of the second Respondent.
That was a matter for them. The Inspector is not recorded as having declined
to accept the report. He referred to its existence towards the end of his
decision as being "informal guidance", which is no doubt not the most accurate
way of describing it. But I bear in mind that he had not seen it, and in any
event the use of a single infelicitous phrase, if that is what it was, does not
by itself render a decision vulnerable to judicial action. That is especially
so when the report itself, which has been put before me as an exhibit,
concluded that the UDP industrial land allocation would satisfactorily meet
future requirements for B1, B2 and B8 floorspace (see para 7.1.10).
47. There
is therefore no proper basis upon which the Inspector's decision should be
quashed under section 288 of the Act. It follows that, even if I had been
minded to take any deficiencies in his decision on the merits of the appeal
into account when considering the fairness of his procedural decision, such a
course would not have altered the conclusion to which I have come on the
judicial review application and which is set out earlier in this judgment.
51. MR
KATKOWSKI QC: My Lord, under in today's regime, post Civil Procedure Rules,
that should be subject to detailed assessment if not agreed, which, I think, is
the formulation. I do have an application for the Council, the Applicant, to
pay another set the costs, that is to say my client's costs to this extent.
First of all, the affidavit that was sworn and put in on behalf of my client,
the second Respondent, has proven invaluable in the court's assessment of the
facts and the merits of the challenges. I would certainly submit that, in any
event, the costs of that affidavit should be paid by the Council to the second
Respondent.
52. Beyond
that there is the question of the two proceedings: the second 288 application,
on the one hand, and the judicial review on the other hand. In relation to the
section 288 application, I am obviously fully aware of the principles set out
in Lord Lloyd's speech in the
Bolton
case,
and I would find it very hard to say that I had such a separate interest, and
one would, if you like, trust the Secretary of State to defend his own
Inspector's decision on the meaning of the various policies and so on and so
forth, so I do not, being pragmatic, seek to waste my Lord's time by making an
application in relation to section 288.
53. In
relation to the judicial review proceedings, I do say that the situation is
quite different because there I do submit that the developer, my client, did
have a particular interest which required separate representations in these
proceedings, not least because, of course, he was the other party to the debate
on whether or not there should be an adjournment, and not least because he has
a particular interest to protect. As my Lord has found, the decision should be
made promptly without undue delay and so on and so forth. I do say that there
is a different prospective between a judicial review and a 288 application. It
is not simply appropriate, if you like, for the court to say that this could
have been for the Secretary of State but it was not right for the second
Respondent to feel that it should be in court also to defend the Inspector's
decision to refuse to adjourn the inquiry. I do say that there is a difference
in principle between the two sets of proceedings. The pragmatic result of that
is, if my Lord is at all with me on that application for the costs of the
judicial review application, my Lord could either order them in the sense that
the costs of the second Respondent in relation to the action by reference to
the number of judicial review proceedings should be paid by the Council to the
second Respondent or, my Lord, given the extreme difficulties that are likely
to be in practice in separating out the costs and so on and so forth ----
55. MR
KATKOWSKI QC: I have a single brief fee. There have been, of course,
conferences and so on and so forth. In those circumstances, I would submit
that the most appropriate course would be simply for an Order that the Council
pay half of the costs of the second Respondent in relation to the two matters.
That would seem, with respect, to be, if my Lord is with me on that point ----
57. MR
KATKOWSKI QC: My Lord, that would, of course, embrace the cost of the
affidavit. I would not ask for the cost of the affidavit on top. What I am
saying is that if my Lord is against me on the larger sum, in any event, with
respect, I must be entitled to the cost of the affidavit. Those are my
submissions on that point.
58. MS
MACPHERSON: Of course, I cannot resist Mr Karas's application and nor do I seek
to do so. In respect of Mr Katkowski's application, I had already given some
thought to the issue of the affidavit. This was an affidavit which was sworn
in order to resist leave being granted for the judicial review, and I am bound
to say that I find it hard, as matters have turned out, to resist that
application. I agree with Mr Katkowski on the submissions as to the section 288.
59. On
the issue of the judicial review, Mr Katkowski's brief fee and the other costs,
I wonder if Mr Katkowski is correct, having heard your Lordship's judgment,
that in fact there was a separate matter for him to argue, given that your
Lordship has ruled that the issue of delay is not a private issue between the
Local Authority and the developer, but rather a matter in the public interest
for the proper administration of the planning system.
60. My
Lord, hearing the submissions that Mr Katkowski has made, I have found it
difficult to distinguish them separately from those that have been made or
could have been made on behalf of the Secretary of State. I ask your Lordship
to find that there was no separate issue argued before you on behalf of the
second Respondent. Therefore, although I cannot resist the costs for the
affidavit, I would ask your Lordship not to award costs in any other respect.
61. My
Lord, in relation to Mr Katkowski's analysis as to the way in which the costs
should be proportioned, if you are against me on the principle of the judicial
review, I would suggest to your Lordship that the apportionment of 50 per cent
for judicial review was putting it extremely high. The judicial review issue
was one on which there was some discussion this morning as to whether or not
the issue could have been brought in the context of section 288, and your
Lordship, indeed, will recall that on page 6C of the bundle, where I explained
the basis on which the two applications are made in the alternative, I would
ask your Lordship to find that if you are against me on the principle of
judicial review, that it does not come to 50 per cent of the total costs of the
second Respondent.
63. MR
KATKOWSKI QC: It is not, of course, a question whether there was a separate
issue. The question is whether it was right, and should be dealt with as a
matter of the costs, for the second Respondent to be separately represented in
order to make submissions on whether a particular perspective or angle or
aspect of the case justified not only their appearance but whether the
unsuccessful Applicants should pay their costs.
64. As
to the 50 per cent, frankly if it is to be cast off to agreement or taxation or
detailed assessment, so be it, but, if anything, 50 per cent frankly would be,
I suspect, generous to the Local Authority, because we have in fact spent more
time on the judicial review in this hearing than we have on the 288 as it has
turned out. 50 per cent is trying to be pragmatic. Those are my submissions.
65. MR
JUSTICE KEENE: I approach this on the basis that I have to arrive at a
decision here which is just and fair to all parties. I bear in mind the
earlier decision of the
Bolton
case.
I also note that virtually all the evidence, other than the decision letter
itself upon which the Respondents rely in these proceedings, has come from the
second Respondent, which is of some significance in the judgment at which I
have to arrive. There has clearly been some overlap, however, in the terms of
the arguments being presented by each of the two Respondents. In those
circumstances, I take the view that something more than just the costs of the
affidavit ought to be paid to the second Respondent. Doing the best that I can
in all the circumstances, I propose to order that the Applicant pay the costs
of the first Respondent and pay one-third of the costs of the second
Respondent. Those costs to be dealt with by way of detailed assessment, if not
otherwise agreed.