Court Costs, Inquiry Costs

Jessie J is no judge and when it comes to litigation costs “forget about the price tag” is poor advice.

Aarhus cost caps

I last blogged about Aarhus Convention cost capping in my 22 June blog post No Time To Be 21: Where Are We With Aarhus Costs Protection? The detail is in that blog post but basically the regime allows a potential claimant in many planning and environmental cases to cap exposure to the other’s side’s costs (if the claim fails) to (subject to case by case variations) £5,000 for an individual and otherwise £10,000. As a quid pro quo, if the claimant succeeds, the claimant can only recover (subject to case by case variations) £35,000 from the other side towards its costs.

A big question, unanswered until this month, was whether these amounts are inclusive or exclusive of VAT. This only matters if the party seeking to recover the costs is not VAT-registered and cannot recover its VAT. But it matters a lot to most individuals and campaign groups.

The issue was decided following written submissions in R (Friends of the Earth) v Secretary of State for Transport (Court of Appeal, 13 January 2021). The background doesn’t matter much but is odd – Friends of the Earth were one of the parties in the Heathrow cases that won in the Court of Appeal against the Secretary of State for Transport, but the case only proceeded to the Supreme Court because interested party Heathrow Airport Limited appealed. Despite the Court of Appeal’s ruling being overturned, Secretary of State for Transport remained on the hook for Friends of the Earth’s costs from the Court of Appeal and, before then, the Divisional Court.

The relevant Aarhus Convention based costs order that had previously been made by the Court of Appeal in the main proceedings was:

The Defendant is to pay the costs of the Claimant in the Divisional Court and in this Court, subject to detailed assessment and a cap of £35,000 in respect of the costs in the Divisional Court, and a cap of £35,000 in respect of the costs in this Court.”

Friends of the Earth submitted that this meant they were due a contribution of £70,000 towards their costs, as well as the VAT element, i.e. £84,000. (Incidentally this is the express statutory position in Northern Ireland – in England and Wales the Civil Procedure Rules are silent on the issue). The Secretary of State submitted that the cap was inclusive of any VAT element.

The Court of Appeal sided with the Secretary of State for four reasons:

“First, that is the natural meaning of the words used in those provisions. The figures are set out as absolute amounts, without qualification.

Secondly, this construction is supported by the history of the consultation exercise and the response to it by the Government in the process which led up to the enactment of CPR 45.43.

Thirdly, it does not seem to us that this would impede or frustrate the implementation in domestic law of the Aarhus Convention. That Convention simply requires that the costs of environmental litigation such as this should not be prohibitive. It does not require a contracting State to specify a particular ceiling, still less to state whether it is inclusive or exclusive of VAT.

Fourthly, the fact that the regulations applicable in Northern Ireland expressly provide for the ceilings to be exclusive of VAT does not assist FoE. Indeed, it suggests that, when the relevant legislative body wished to make the point clear, it was able to, and did so.”

So the bottom line is that the £70,000 entitlement had become an entitlement to £58,333.33 plus the VAT element on that amount.

There is an element of unequal treatment in this – if the party claiming costs were able to recover VAT the cap would in practice apply to its net costs figure, the VAT element only being an issue where the party can’t recover its VAT. Time to amend the CPR to accord with the Northern Ireland position?

Incidentally, I recommend a short YouTube summary on the case by Kings Chambers’ Martin Carter. As I write, the video has had 36 views and Jessie J’s Price Tag has had 731 million views. Come on planoraks!

Other court costs awards

Stepping aside from Aarhus costs capping, the general principle is that “if a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs” (Lord Toulson in R (on the application of Hunt) v North Somerset Council (Supreme Court, 22 July 2015) but the court of course always has a wide discretion.

That discretion may well result in no award or a reduced award. Two examples which may serve to manage expectations:

In Tomkins v City of London Corporation (Lang J, 8 December 2020) the claimant challenged the making of an experimental traffic order in relation to Beech Street, which runs under the Barbican Estate. He won on three of eight grounds but was not awarded costs:

The Claimant’s application for the City to pay his costs is refused. Although he succeeded on three of the eight grounds, he did not succeed in quashing the [experimental traffic order]. The Council succeeded on five of the grounds, and the issues on which the Council succeeded occupied the majority of the hearing, and the post-hearing submissions. The City incurred significant costs in preparing and presenting those issues. Their costs far exceed the Claimant’s claim for costs in respect of the grounds on which he was successful. The City is not pressing for its costs, but has instead proposed that there should be no order for costs. In all the circumstances I consider that this is a just and appropriate order.”

(Town Legal’s Town Library summary is here).

In Flaxby Park Ltd v Harrogate Borough Council (Holgate J, 25 November 2020) the claimant had sought to challenge the adoption of part of the Harrogate local plan on three grounds and succeeded on part of one ground. To cut a long story short (literally), Holgate J did not allow the claimant to recover the costs of an original bundle which he considered to be disproportionately lengthy or of the preparation of a witness statement which he determined to be unnecessary, and awarded the claimant 15% of the balance of its costs:

“I do not accept HBC’s submissions that there should be no order as to costs. … It was necessary for FPL to bring proceedings, but they ought to have been on a much more limited scale. Taking into account also the unnecessary expenditure to which HBC has been put in order to resist the substantial parts of the claim where FPL was unsuccessful, FPL should be awarded only 15% of its costs…”

Appeal inquiry costs awards

In Swale Borough Council v Secretary of State (Sir Ross Cranston, 17 December 2020), Swale Council sought unsuccessfully to challenge a costs order made against it by a section 78 appeal inspector

The judgment includes a helpful review of the case law in relation to challenges to inspectors’ awards of costs, leading to the following conclusion by the judge:

“the authorities establish the following propositions:


(i) the Secretary of State is entitled to adopt a policy about costs and having done so his inspectors must apply it;


(ii) the policy is that costs may be awarded against a party for unreasonable behaviour resulting in unnecessary or wasted expense;


(iii) “unreasonable” means unreasonable in the ordinary sense of the word, not unreasonable in a Wednesbury sense;


(iv) a Council’s behaviour may be unreasonable if its refusal of planning permission could not be supported by substantial evidence, but that is not the only test and there may be other relevant factors;


(v) one example is if a developer signs a section 106 agreement; it is accepting that it is reasonable even though the inspector may not be persuaded that it is necessary
.”

The Council had sought to argue that it was wrong for it to be penalised for late withdrawal of its requirement for an affordable housing contribution and for the consequence of a late indication of particular highways concerns but the judge declined to interfere with the judgment of the inspector. For instance, on the second complaint:

In my view this is one of those cases where a different inspector may have reached a different conclusion. However, I cannot conceive that Mr Upton has surmounted the high hurdle necessary to establish that this inspector’s decision was flawed. The case which Mr Village QC put to the inspector was that the Council had not raised what became condition 19, or the further contribution to traffic calming in Darlington Drive/Parsonage Chase, until immediately before the exchange of evidence on 6 January 2020, too late to avoid the preparation of Attwood’s highways evidence. When these were raised as a way forward, Attwood agreed and it was an example of the Council’s failure to review the case promptly following the lodging of the appeal, one of the examples the PPG gives as indicating unreasonable behaviour (at para. 049, referred to earlier).

(Town Legal’s Town Library summary of the case is here).

Simon Ricketts, 16 January 2021

Personal views, et cetera

Where’s The Harm In That? Misreporting Heritage Effects

A few recent cases illustrate how vulnerable planning permissions can be to judicial review where there are material errors or omissions in the officer’s report to committee.

R (Wyeth-Price) v Guildford Borough Council (Lang J, 8 December 2020) is a classic example, and Lang J sets out in her judgment a textbook explanation of the legal framework, established by caselaw, in relation to decision making and officers’ reports.

It seems to me that the most risk-prone areas of an officer’s report will be:

⁃ summaries of the conclusions of often detailed and highly technical analysis, where the decision maker must not be “significantly misled” by the summary or indirectly by the material on which the summary is based – classic areas for scrutiny being effects on daylight and sunlight, viability, air quality, and noise

⁃ the interaction with other legal regimes, for example environmental impact assessment, the Conservation of Habitats Regulations or the public sector equality duty

⁃ application of legal or policy tests – classic areas being the NPPF tilted balance, green belt, AONB and heritage.

Wyeth-Price is another in a rich seam of cases where the High Court has quashed a planning permission due to the failure of the officer properly to apply the heritage tests in the NPPF, which must have been frustrating to Bewley Homes, which had achieved, so it thought, planning permission for 73 dwellings at Ash Manor, Ash Green, Guildford, following a committee resolution on 4 December 2019 on the basis of a 49 page officer’s report.

The effect on nearby listed buildings was a central issue in the consideration of the application. To quote from Lang J’s judgment:

“Adjacent to the Site…there is a small complex of historic buildings and farm structures, known as Ash Manor. The largest building within the complex is Grade II* listed and has been converted into two residential dwellings, known as Ash Manor and Old Manor Cottage. The Oast House lies to the south of it and its stables are Grade II listed. To the south of this is a further residential dwelling known as Oak Barn which is also Grade II listed. The significance of Ash Manor is derived from its historic and architectural interest as a moated manor house, thought to have thirteenth century origins, with successive phases of development dating to the sixteenth, seventeenth and mid-twentieth centuries. According to Historic England, the current agricultural and open character of the setting of Ash Manor is one that has remained constant through its history. It advised that the proposed development would cause harm to the setting of the heritage assets, assessed at less than substantial harm.”

The importance of the heritage aspect in resisting the proposal had not been lost on objectors – see for example a 2017 Guildford Dragon article Grade II* Listing for Ash Manor House May Scupper Development Proposals:

“A homeowner in Ash Green is hoping that a new Grade II* listing from Historic England may prevent proposed developments that would surround his moated 13th-century manor house with nearly 200 houses, possibly more if further envisioned development phases are built out.

David Weller, who owns Old Manor Cottage, half of the original medieval Ash Manor House, off Foreman Road, said: “If the proposed developments go ahead the setting of our historic house will be ruined for good.”

The challenge was brought by a local resident who was formerly the chair of the Ash Green Residents’ Association. There were three grounds:

“i) Ground 1: Failure to apply section 66(1) of the PLBCAA 1990 and failure to take account of paragraphs 193 and 194 of the Framework.


ii) Ground 2: Failure to have regard to a relevant consideration, namely, the advice of Surrey Wildlife Trust in respect of a veteran tree at the Site, and acting irrationally in departing from the advice without reasons.


iii) Ground 3: Failure to have regard to material considerations concerning flooding at the Site and/or acting irrationally by ignoring expert evidence on this matter”

Grounds 2 and 3 failed and so I am just focusing on ground 1, relating to section 66(1) of the Listed Buildings Act (“In considering whether to grant planning permission…for development which affects a listed building or its setting, the local planning authority…shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses”) and paragraphs 193 and 194 of the NPPF:

“193. When considering the impact of a proposed development on the significance of a designated heritage asset, great weight should be given to the asset’s conservation (and the more important the asset, the greater the weight should be). This is irrespective of whether any potential harm amounts to substantial harm, total loss or less than substantial harm to its significance.

194. Any harm to, or loss of, the significance of a designated heritage asset (from its alteration or destruction, or from development within its setting), should require clear and convincing justification. Substantial harm to or loss of:

a) grade II listed buildings, or grade II registered parks or gardens, should be exceptional;

b) assets of the highest significance, notably scheduled monuments, protected wreck sites, registered battlefields, grade I and II* listed buildings, grade I and II* registered parks and gardens, and World Heritage Sites, should be wholly exceptional.”

Lang J sets out the relevant tests and case law in her judgment before summarising the problems with the report:

“The Claimant submitted that the planning officer’s report seriously misled the Planning Committee by failing to advise members on the weight to be given to the harm to heritage assets in the balancing exercise. Although he set out section 66(1) PLBCAA 1990, he did not explain that a finding of harm to a listed building is a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. He failed to refer at all to paragraph 193 of the Framework, which requires “great weight” to be given to the asset’s conservation and the more important the asset, the greater the weight should be. He also failed to refer to paragraph 194 which requires a “clear and convincing justification” for any harm. Applying the approach of Sales LJ in Mordue, the Claimant submitted that there were positive indications in the report that the officer had not taken paragraphs 193 and 194 into account.”

“The planning officer expressly referred to the duty under section 66(1) PLBCAA 1990, both in his advice on the statutory framework and at the critical stage of the balancing exercise. However, he did not advise members on how they were required to apply the section 66(1) duty to the balancing exercise. The application of the section 66(1) duty is not explicitly clear from the wording of section 66(1), as demonstrated by the fact that it was only after the case of Barnwell that it was fully appreciated by experienced planning inspectors and lawyers that section 66(1) imposed a duty to treat a finding of harm to a listed building as a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise and that it was not open to the decision-maker merely to give the harm such weight as he thinks fit, in the exercise of his planning judgment.”

“Can it be inferred that the planning officer in this case took into account paragraphs 193 and 194 of the Framework in the balancing exercise he conducted in his report and thereby enabled members of the Planning Committee to take them into account?

In my view, there were several positive indications to the contrary…”

“Thus, in 2017, members were advised that the effect of section 66(1) PLBCAA 1990 was that a finding of harm to a listed building was a consideration to which the decision-maker must give “considerable importance and weight” when carrying out the balancing exercise. Members were also reminded, for the second time, of the guidance in the Framework that “great weight” should be given to the asset’s conservation – the more important the asset, the greater the weight should be – and that any harm or loss required “clear and convincing justification” for any harm. None of this advice was given in the October 2019 report. The fact that, in 2017, the planning officer was recommending refusal of permission, whereas, in 2019, he was recommending a grant of permission, ought not to have had any bearing on whether or not to include this advice in the report, and it was not suggested that it did.

“I now return to the question whether the advice was seriously misleading, thereby misleading the members in a material way so that, but for the flawed advice, the Planning Committee’s decision would or might have been different. In my judgment, the planning officer must have been aware of the guidance given by the Court of Appeal in Barnwell on the application of the section 66(1) duty to the balancing exercise and the guidance in paragraphs 193 and 194 of the Framework, as it is well-known among professional planners and he advised on it in the 2017 report. However, on a fair reading of his October 2019 report, he did not advise members of the Planning Committee on this guidance and he did not apply it when he undertook the balancing exercise on this occasion.

At the hearing I asked the parties whether an experienced member of the Planning Committee, who had been referred to this guidance in other applications, perhaps even the 2017 application, might have been aware of the guidance, even though it was not to be found in the planning officer’s report. When I raised this possibility with the parties, Mr Williams for the Council did not wish to rely upon it. Mr Fitzsimons for the Claimant rejected it on the basis that busy Committee members relied upon the officer’s report and did not do their own research. On instructions, he said that new members had recently been appointed to the Planning Committee, following elections, and so it could not safely be assumed that they were aware of the guidance, from the 2017 application or any other. It seems to me that if a member of the Planning Committee did consider that the planning officer’s report did not give accurate and/or sufficient advice on how to conduct the balancing exercise, the matter would have been raised at the meetings. The minutes of the two meetings of the Planning Committee do not record that members sought further clarification or guidance on how to conduct the balancing exercise at those meetings. Therefore I conclude that members of the Planning Committee relied only upon the advice given in the planning officer’s reports.”

There was also a short addendum report addressing amendments made to the scheme but this “report repeated the error of advising members to undertake an untilted balancing exercise, weighing the less than substantial harm to the heritage assets against the public benefits of the proposal without apparently taking into account the requirement to accord “considerable importance and weight” to a finding of harm to a listed building and “great weight” to the asset’s conservation, as a Grade II* listed building, and the need for a “clear and convincing justification” for any harm.”

Care needed!

In concluding that the effect of the officer’s balancing exercise was to “play down the part of the exercise represented by [paragraph 193 and 194] and to tilt the balance towards emphasising the absence of substantial harm and the public benefits to be weighed on the other side of the balance“, Lang J draws upon another case earlier this year R (Liverpool Open and Green Spaces Community Interest Company). Liverpool City Council (Court of Appeal, 9 July 2020) where the Court of Appeal quashed planning permission on the basis that there was a “substantial doubt” as to whether the section 66(1) duty had been met where the officer’s report had failed to refer to objections to the proposals from the council’s Urban Design and Heritage Conservation team, a conclusion “only strengthened by the absence, at least from the section of the officer’s report in which his assessment is set out, of any steer to the members that a finding of harm to the setting of the listed building was a consideration to which they must give “considerable importance and weight“.

In fact, omissions from a report of a reference to relevant objections – or misleading inferences from a lack of an objection – are a particularly high risk area. The Court of Appeal in the Liverpool case refer back to R (Loader) v Rother District Council (Court of Appeal, 28 July 2016) where the officer’s “report had indicated that the Victorian Society, which had objected to a previous application, had made no comments on the new proposal. In fact, they had not been consulted. The appellant argued that the committee might have been left, wrongly, with the impression that the Victorian Society were now satisfied with the revised design. This court accepted that “[in] the context of the duty [in section 66(1)], … in taking this misinformation into account, [the committee] could be said to have proceeded on the basis of an error of fact”, but that “the unlawfulness [was] better described as the taking into account of an immaterial consideration” (paragraph 57). This was enough to justify quashing the planning permission (paragraph 58).”

We now have an even more dramatic example in the case of the One Eastside development in Birmingham, a proposal for 667 apartments in a 51 storey tower near Curzon Street station.

The scheme was the subject of a 5 December 2019 Committee report (from page 122 of the pdf) but the resulting planning permission was challenged by nearby land owner LaSalle (See e.g. BD Online Glancy Nicholls tower faces judicial review ((9 November 2020).

Greg Jones QC and Esther Drabkin-Reiter have been acting for LaSalle and it seems from Francis Taylor Building’s 9 December 2020 press statement that the council has consented to judgment on the basis that “an objection to the proposed development made by the Victorian Society was not reported to the Planning Committee and further that the objection made by the Victorian Society went beyond those matters identified by Historic England which were reported to the Planning Committee.

How precarious a planning permission can be until it has passed the deadline for a legal challenge (time again to tout my proposal that the judicial review pre-action protocol should encourage early identification by claimants of these sorts of points, before planning permission is issued – my 30 May 2020 blog post Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated? – whilst recognising that in some cases, including possibly the One Eastside example, the extent of the errors and omissions may only in fact become clear through the litigation process itself).

Simon Ricketts, 12 December 2020

Personal views, et cetera

Extract from site location plan courtesy of Guildford Borough Council’s 5 December 2019 report to committee

Planning Law For The Future

A Town/Landmark Chambers webinar on the Planning Court in practice and the future implications of the Faulks review is taking place at 5.30pm on 14 October, when I will be joined by Landmark Chambers’ John Litton QC, Tim Buley QC and Jenny Wigley, together with my Town partner Duncan Field. Free registration here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

The webinar is in part a follow-on from the development of the Town/Landmark Chambers Case Explorer (a case searching and statistical analysis tool containing every judgment of the Planning Court since its creation in 2014 to June 2020, together with appellate judgments) and in part will consider the likely implications of the Faulks Review Of Administrative Law, which I covered in a 12 September 2020 blog post . The call for evidence deadline of 19 October 2020 is fast approaching.

But what I wanted to give you a taste of in this short post is how, with data scientist Joseph White of legal engineers Simmons Wavelength, we’ve begun to play around with new ways of exploring the contents of the Planning Court Case Explorer, and in particular the ways in which case law develops – the Planning Court Case Network.

The following images illustrate a visualised “citation network” of Planning Court cases. Each circle or ‘node’ represents a case, and each line or ‘edge’ between two nodes represents where one case has cited another (a line that curves clockwise from one case represents where that case has cited another, and a line that curves anti-clockwise represents where it has been cited). The more times a case has been cited, the larger the node.

The lone nodes on the perimeter represent cases that do not cite other cases and which have not been cited in subsequent cases.

Selecting an individual case node allows you to see some case topic keywords (extracted with a data science technique for language processing), a link to Bailii and all “incoming” links (later cases that cite the selected case) and “outgoing” links (earlier cases that the selected case cites itself).

In terms of the network layout, citations between cases draw them closer together, so what naturally emerges is dense groups or ‘clusters’ of cases that are closely related to each other (which is also represented to a certain extent by the colours).

The connections are fascinating. Whilst the data is not guaranteed to be 100% accurate we can see what are the most influential cases: Suffolk Coastal assumes centre stage as the most cited case in the whole network (62 citations!). Champion, has its own network of 30 citations, and Dover District Council v CPRE Kent has 22 citations.

Just pretty images or can I be the first to say… PlanLawTech?!

Simon Ricketts, 10 October 2020

Personal views, et cetera

Learn An Instrument They Said. So I Picked Up The GPDO

At last – the Secretary of State announced on 30 September 2020 that dwellings created by way of permitted development rights will need to comply with the nationally described space standard.

There is no timescale given for when the change will be effected, which will need to be by way of a further statutory instrument amending the 2015 General Permitted Development Order. We have already had four such SIs already this year and further changes are in the queue, such as giving effect to the 14 July 2020 announcement that planning permission will be required for the demolition of theatres, concert halls and live music venues and giving effect to the proposed relaxation of permitted development rights for 5G infrastructure (of which more below). Good luck keeping up! (It’s odd how the Government can keep updating the Planning Practice Guidance but Parliament still does not make available up to date consolidated versions of secondary legislation, whether in our planning law field or for instance in relation to coronavirus measures.)

I dealt with the nationally described space standard in my 23 March 2019 blog post We Have Standards. Since being introduced in 2015, it has been up to each local planning authority to decide whether to adopt the standard as policy in its local plan. Once it is made a legal requirement for permitted development schemes we will have the curious position that in some areas, where authorities have not adopted it as local policy, it will be required for permitted development schemes but not for projects which are pursued by way of a traditional planning application.

It is disappointing that the additional requirement was not introduced in the June and July 2020 statutory instruments, which for instance introduced the additional prior approval requirement of “adequate natural light” (NB “adequate” undefined – wait for the arguments).

Public pressure and a continuing trail of adverse media stories in relation to office to residential schemes presumably have played their part (most recently Rowan Moore’s 27 September Observer piece ‘It’s like an open prison’: the catastrophe of converting office blocks to homes). As for the 30 September timing of the announcement? That’s obvious – later that day a Commons debate took place, as scheduled, in relation to Labour’s motion that the three statutory instruments amending the General Permitted Development Order be revoked. The announcement neutralised one of the most obvious lines of attack. Predictably the motion was defeated, entirely along party lines, 327 votes to 206 votes.

This month will of course see the hearing into the GPDO changes judicial review that I covered in my 5 September 2020 blog post Lights Camera Action: The Planning Changes – Parliamentary Scrutiny, That JR.

And now there is yet another judicial review underway, into the Government’s 22 July 2020 announcement that it proposes to extend “permitted development rights to support the deployment of 5G and extend mobile coverage”. There is a piece about the challenge here: Government faces legal challenge over 5G phone masts ‘safety fears’ (Evening Standard, 1 October 2020). As with the Rights: Community: Action judicial review it is crowd funded. The Rights: Community: Action challenge appears to have raised £12,245 “of £25,000 stretch target from 271 pledges”. The 5G challenge appears to have raised £66,615 pledged “of £150,000 stretch target from 2,004 pledges”.

As with most crowdfunded litigation there is no analysis for potential donors on the crowdjustice website of its prospects of success, or what the judicial review process entails, but there is a link to the prospective claimants’ pre-action letter dated 21 August 2020 which alleges that the consultation process leading to the 22 July 2020 announcement was unlawful and was in breach of the public sector equality duty – and Aarhus Convention costs protection is sought. Without prejudging at all whether there is any basis for the complaints, this all is of course familiar territory in relation to these sorts of claims.

Finally, some plugs:

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

5.30 pm 14 October 2020

PC in 2020 – Has the Planning Court proved a success? What should be its future, and that of judicial review and statutory challenges in the planning system, in the light of the Faulks review?

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ

And lastly, watch out for a new series by Cratus and Town, Steve Quartermain in Discussion. The first episode is an hour long conversation with Secretary of State Robert Jenrick. More news will appear on the Cratus website.

Simon Ricketts, 3 October 2020

Personal views, et cetera

Linda Manzer’s pikasso guitar

Faulks Review Of Administrative Law: Call For Evidence

In my 15 August 2020 blog post, Introducing The Planning Court Case Explorer, I referred to the independent review of administrative law chaired by Lord Faulks, that the Government has commissioned. The review has now published, quietly it must be said, a call for evidence on 7 September 2020, with a deadline for responses of noon on 19 October 2020 (to be emailed to IRAL@justice.gov.uk).

The examination question that the review has been given by the Government is this:

“Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”

The review is politically charged. The Conservative party’s 2019 manifesto said this:

“After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates.”

Lord Faulks’ standpoint is well-documented.

I suspect their focus will be on the, inevitably politicised, constitutional law litigation that we saw last year. That is an issue which is above this blog’s pay grade, but as a planning lawyer I’m concerned that any reform to administrative law may be to the detriment of the role of the Planning Court in relation to disputes arising under our planning system. And as we begin to move to a new system, the Planning Court will have a crucial role in joining the dots given the inevitable uncertainties that will arise. We need that process to be fast, efficient and, above all, trusted. The oversight of the process by the courts is a vital element in ensuring that our system continues to comply with, for example, the requirements of the Aarhus Convention and of Article 6 of the European Convention on Human Rights (and if anyone suggests that these things don’t matter, just wait till their property is compulsorily acquired without justification, or a dodgy planning permission is issued without any proper remedy in the courts).

I just read again the House of Lords rulings in the Alconbury cases (9 May 2001), which concerned the question as to whether various aspects of the planning system as it was at that time met the requirements of the European Convention on Human Rights, at that point having recently been incorporated into UK law by way of the Human Rights Act 1998. The House of Lords concluded that the system complied with the Convention, but on the basis that an essential element of that system was the supervisory role of the courts in reviewing the lawfulness and rationality of administrative decisions taken in the process.

My nervousness as to where we may eventually end up is accentuated by the current furore over clause 45 of the United Kingdom Internal Market Bill, due to receive its second reading in the House of Commons on 15 September.

Imagine if the next Town and Country Planning Act rendered non-justiciable any regulations made under that Act? How convenient for a Government keen to proceed fast by way of secondary legislation and no doubt unhappy with the inevitable challenges it faces along the way (of which the Rights Community Action judicial review covered in last week’s blog post is a classic example).

Or if procedural failures in relation to decisions led to a rap over the knuckles for the authority rather than an undoing of what was done outside its powers?

Or if judicial review were codified in statute in such a way as to close out challenges to rationality or challenges on grounds such as bias, or legitimate expectation?

Of course, I hope that all of this is unlikely. I have some residual faith that there remains a basic understanding of the importance of the rule of law. I was pleased to see on Friday that the British Property Federation is canvassing its members in reaction to the call for evidence and I hope that other industry bodies do the same. After all, business needs predictability and to know that it is to be treated fairly – this is not just the domain of campaigners and communities!

If you have specific experiences of the role of judicial review in relation to the planning system, please do consider responding to that call for evidence.

As with any examination questions, do read the initial rubric first:

“The Independent Review of Administrative Law (IRAL) panel invites the submission of evidence on how well or effectively judicial review balances the legitimate interest in citizens being able to challenge the lawfulness of executive action with the role of the executive in carrying on the business of government, both locally and centrally. The panel is particularly interested in any notable trends in judicial review over the last thirty to forty years. Specifically, the panel is interested in understanding whether the balance struck is the same now as it was before, and whether it should be struck differently going forward.

The panel would like to hear from people who have direct experience in judicial review cases, including those who provide services to claimants and defendants involved in such cases, from professionals who practice in this area of law; as well as from observers of, and commentators on, the process. The panel are particularly interested in receiving evidence around any observed trends in judicial review, how judicial review works in practice and the impact and effectiveness of judicial rulings in resolving the issues raised by judicial review.”

So, what matters is direct experiences, evidence and data rather than rhetoric.

These are the specific areas which the review will be considering:

“• Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute.

• Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government.

• Whether, where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful.

• Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular: (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d) on time limits for bringing claims, (e) on the principles on which relief is granted in claims for judicial review, (f) on rights of appeal, including on the issue of permission to bring JR proceedings and; (g) on costs and interveners.”

The call for evidence starts with a questionnaire for “Government Departments” (but which I would suggest is equally relevant for local authorities):

“1. In your experience, and making full allowance for the importance of maintaining the rule of law, do any of the following aspects of judicial review seriously impede the proper or effective discharge of central or local governmental functions? If so, could you explain why, providing as much evidence as you can in support?

a. judicial review for mistake of law

b. judicial review for mistake of fact

c. judicial review for some kind of procedural impropriety (such as bias, a

failure to consult, or failure to give someone a hearing)

d. judicial review for disappointing someone’s legitimate expectations

e. judicial review for Wednesbury unreasonableness

f. judicial review on the ground that irrelevant considerations have been taken into account or that relevant considerations have not been taken into account

g. any other ground of judicial review

h. the remedies that are available when an application for judicial review is successful

i. rules on who may make an application for judicial review

j. rules on the time limits within which an application for judicial review must be made

k. the time it takes to mount defences to applications for judicial review

2. In relation to your decision making, does the prospect of being judicially reviewed improve your ability to make decisions? If it does not, does it result in compromises which reduce the effectiveness of decisions? How do the costs (actual or potential) of judicial review impact decisions?

3. Are there any other concerns about the impact of the law on judicial review on the functioning of government (both local and central) that are not covered in your answer to the previous question, and that you would like to bring to the Panel’s attention?”

No doubt the responses to these questions, from those inevitably on the receiving end of judicial review, will point to the delays and uncertainty caused by legal challenges, but of course that is only one side of the story, which is why it is so important that there are responses from a wide section of business and society to the main questions which I set out below:

“1. Are there any comments you would like to make, in response to the questions asked in the above questionnaire for government departments and other public bodies?

2. In light of the IRAL’s terms of reference, are there any improvements to the law on judicial review that you can suggest making that are not covered in your response to question (1)?

Section 2 – Codification and Clarity

3. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?

4. Is it clear what decisions/powers are subject to Judicial Review and which are not? Should certain decision not be subject to judicial review? If so, which?

5. Is the process of i) making a Judicial Review claim, ii) responding to a Judicial Review claim and/or iii) appealing a Judicial Review decision to the Court of Appeal/ Supreme Court clear?

Section 3 – Process and Procedure

6. Do you think the current Judicial Review procedure strikes the right balance between enabling time for a claimant to lodge a claim, and ensuring effective government and good administration without too many delays?

7. Are the rules regarding costs in judicial reviews too lenient on unsuccessful parties or applied too leniently in the Courts?

8. Are the costs of Judicial Review claims proportionate? If not, how would proportionality best be achieved? Should standing be a consideration for the panel? How are unmeritorious claims currently treated? Should they be treated differently?

9. Are remedies granted as a result of a successful judicial review too inflexible? If so, does this inflexibility have additional undesirable consequences? Would alternative remedies be beneficial?

10. What more can be done by the decision maker or the claimant to minimise the need to proceed with judicial review?

11. Do you have any experience of settlement prior to trial? Do you have experience of settlement ‘at the door of court’? If so, how often does this occur? If this happens often, why do you think this is so?

12. Do you think that there should be more of a role for Alternative Dispute Resolution (ADR) in Judicial Review proceedings? If so, what type of ADR would be best to be used?

13. Do you have experience of litigation where issues of standing have arisen? If so, do you think the rules of public interest standing are treated too leniently by the courts?”

We have arranged a joint Town Legal/Landmark Chambers webinar at 5.30 pm on 14 October 2020 to consider these questions in the specific context of the planning system, and the operation of the Planning Court. Event and registration details here: https://us02web.zoom.us/webinar/register/WN_2gsWU81vT7erSoeWqqQ7MQ .

Whether you come from the standpoint of a developer, local authority or community representative, when you strip away the legalism (as we will try to do) all of this really does matter in practice – not just in relation to the small minority of matters that end up in the Planning Court, but in relation to the operation of the system as a whole: fair and predictable procedures are only possible if we know that there are rules, and that remedies are available if they are broken. And when challenges are brought, they need to be resolved with speed, fairness and efficiency.

Simon Ricketts, 12 September 2020

Personal views, et cetera

PS two other webinars for your diary:

5.30 pm 15 September 2020

Permission In Principle – In Practice

(Town Legal with Landmark Chambers)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_5S0GAe6ySN2zfvsdtjd0uQ

5.30 pm 7 October 2020

How will the Combined Infrastructure Levy work, how should it work?

(Town Legal with special guest MHCLG’s director of planning, Simon Gallagher)

Event details and registration: https://us02web.zoom.us/webinar/register/WN_HeND28vJQ6STT-FdLz1u_Q

The Great Hall, Royal Courts of Justice (courtesy Wikipedia)

Introducing The Planning Court Case Explorer

We understand why many participants – not just local authorities, but statutory consultees and the Planning Inspectorate – are risk averse. Judicial review is expensive, and to lose a judicial review in the courts is bad for the reputation of either [sic]. And judicial reviews can be precedent setting, establishing a new interpretation of the law. We think the proposals set out in the document should remove the risk of judicial review substantially. Most judicial reviews are about imprecise and unclearly worded policies or law. Our plans for an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge.” (Planning For The Future white paper, paragraph 5.16)

You can’t really contemplate any reform on the planning system without considering the role of the courts in the way that the system works in practice. Plainly where a public body (whether the state or a local authority) acts outside its powers, someone thereby affected needs to have access to an effective remedy, usually an order that renders it to be of no legal effect. Quite apart from the rights and procedures deriving from domestic common law principles, UK has international obligations to maintain such processes under Article 6 of the European Convention on Human Rights and, specifically in relation to access to environmental justice, under the third pillar of the Aarhus Convention. You can’t embark on a new system without a functioning mechanism to ensure that everyone plays by the rules.

Whilst essential as a backstop against abuse of power, the role of the courts in the operation of the planning system does of course need to be kept to a minimum. There are two areas in particular where there has always been scope to reduce the number of unnecessary claims:

1. As mentioned in that passage in the white paper, many (I’m not sure I would say “most”) “judicial reviews are about imprecise and unclearly worded policies or law.” As regards that first area, the aspiration in the white paper (“an overhaul of planning law to create simple and clear processes and for plans that set out clear requirements and standards will substantially remove the scope for ambiguity and therefore challenge”) is worthy but at present purely wishful thinking. We anticipate now a separate “Autumn” consultation into potential changes to EU-derived legislation, with a view to streamlining for instance SEA and EIA processes (no surprise – see e.g. my 4 July 2020 Have We Got Planning Newts For You: Back To Brexit blog post as well as Environment Secretary George Eustice’s 20 July 2020 speech). Of course, EU-derived environmental legislation (although, to be accurate, this is not about the EU – the relevant EU directives in turn implemented wider international treaty obligations) has been at the root of much planning caselaw, but the white paper’s proposals introduce a wide range of fresh tensions and uncertainties into the process – whether that be about the central imposition of housing requirements on local authorities, accelerated routes to development approvals or the proposed shift to a wholly new mechanism for the funding and delivery of affordable housing and infrastructure.

2. Claimants should be discouraged from using litigation simply as a tactic to secure delay or publicity, or in order to have a “low consequences” speculative last throw of the dice. Some steps have been taken to address this in recent years, most importantly the establishment of the Planning Court in March 2014 so that cases could be dealt with more quickly, by specialist judges, by the introduction of a permission stage in relation to section 288 challenges and by tightening the rules on costs protection (see my 22 June 2019 blog post No Time To Be 21: Where Are We With Aarhus Costs Protection?).

The lack of statistics as to the effectiveness of the Planning Court is frustrating. I went into this in my 8 July 2018 blog post The Planning Court and Richard Harwood QC has also recently expressed similar frustrations in the July 2020 39 Essex Chambers planning, environment and property newsletter, How common are High Court planning challenges?

At Town we recently decided to do something about it. Working alongside Landmark Chambers, on 13 August 2020 we unveiled what we call the Planning Court Case Explorer. The Case Explorer brings together, in one dataset, all judgments of the Planning Court after a full hearing, since its establishment in March 2014 to the end of June 2020 quarter by quarter (25 quarters), together with all subsequent appellate judgments. That amounts to 377 judgments by the Planning Court, 105 by the Court of Appeal and 11 by the Supreme Court. The data captured includes the length of time between the decision under challenge and the ruling, parties, judge and subject matter, with a link to the bailii transcript and usually our Town Library summary, and with a variety of search options so as to be able to interrogate the data, by way of clicking into the tables.

Only now, through this data, can it be seen that the average duration between a decision under challenge and the first instance ruling in relation to that decision is 293 days and can the extent of further delay be seen when a case goes to the Court of Appeal (an average of 726 days between the decision and the ruling) or there after to the Supreme Court (1,000 days!). In the context of a six weeks’ deadline for bring the claim in the first place and then the initial permission stage, that 293 days’ figure in my view is not unreasonable. The subsequent delays on appeal are in my view wholly unjustifiable.

Which judge in the High Court has handed down the most rulings? Lang J (69 judgments), followed a long way behind by Holgate J (28). Which Court of Appeal judge in relation to appeals from rulings by the Planning Court? Unsurprisingly Lindblom LJ (56). For each judge there is a list of his or her judgments.

Which are the most frequent parties? The Secretary of State is way ahead of the field, unsurprisingly, with 267 cases. Second, the Royal Borough of Kensington and Chelsea (14 rulings). Third, Gladman Developments Limited (12).

There are limitations to the work – for instance we have not focused on win/lose statistics, given the variety of permutations of outcome, and we have not analysed the much larger number of claims which are sieved out at the permission stage. However, I hope that the analysis is a useful step towards greater transparency.

The work now has additional topicality. The Government is not just proposing to reform the planning system. On 31 July 2020 it launched an “independent panel to look at judicial review”.

As set out in the press statement:

“Specifically, the review will consider:

• Whether the terms of Judicial Review should be written into law

• Whether certain executive decisions should be decided on by judges

• Which grounds and remedies should be available in claims brought against the government

• Any further procedural reforms to Judicial Review, such as timings and the appeal process”

The panel’s detailed terms of reference make for potentially worrying reading in terms of their breadth. Don’t just take that from me – here are two recent posts by Mark Elliott, professor of public law and chair of Cambridge University’s law faculty: Judicial Review Review 1: The Reform Agenda & Its Potential Scope and The Judicial Review Review II: Codifying Judicial Review – Clarification Or Evisceration? The review also needs to be read in the context of the Policy Exchange’s agitations via its Judicial Power Project and most recently its 31 July 2020 document Reforming The Supreme Court (now let’s think about what motivation they might have for that? hmm…). This is all really important stuff – at least as important and potentially far reaching as planning reform, that’s for sure.

The panel comprises:

• Lord Faulks QC – Panel Chair

• Professor Carol Harlow QC

• Vikram Sachdeva QC

• Professor Alan Page

• Celina Colquhoun

• Nick McBride

It is very good to see Celina Colquhoun, as a well-respected and leading planning barrister, on the panel, and I hope that the operation of the Planning Court can perhaps be held out as a useful precedent, with its proactive, relatively quick, case management and judges familiar with our subject area, meaning quicker hearings with, in my view, a greater degree of predictability of outcome. 493 planning cases going to a full hearing (including appeals) in just over six years? That’s not many at all in my view, given the inherent contentious nature of our work and the extent to which there is room for dispute and uncertainty. Despite all the usual gnashing of teeth, isn’t this one aspect of our planning system that is actually working (or at least would be once the Court of Appeal adopts the same approach to timescales as the Planning Court)? In fact, where would we be without regular clarification from the courts as to what the legislation actually means?!

That leads neatly onto a reminder about our free weekly Town Library Planning Court rulings subscription service. The registration page for this and other Town Library updates (e.g. planning appeal decision letters) is here: https://www.townlegal.com/news-and-resources/#the-town-library .

Simon Ricketts, 15 August 2020

Personal views, et cetera

The Planning Court Case Explorer

Double Exposure – Holborn Studios Win Again: Viability, Transparency

The next time you hear someone reprise Dominic Cummings’ February 2020 riff on the need for “urgent action on the farce that judicial review has become”, it’s worth thinking back to cases like R (Holborn Studios) v London Borough of Hackney (No 2) (Dove J, 11 June 2020). Sometimes it’s only the pesky lawyers (here Richard Harwood QC and solicitor Susan Ring, as well of course as a switched on judge) who, via judicial review, are finally able to cut through the sheer fudge and obfuscation of the planning application process.

This was the second time around for Holborn Studios, described in the judgment as “the leaseholder of 49-50 Eagle Wharf Road where they run one of the largest photographic studio complexes in Europe”. The studios have long campaigned against the proposed redevelopment of their building (for instance see What will become of Holborn Studios? (Londonist, 25 August 2017)).

The first planning permission which the London Borough of Hackney had purported to grant, in November 2016, was quashed by the High Court in R (Holborn Studios) v London Borough of Hackney (No 1) (Deputy Judge John Howell QC, 10 November 2017). The judge found that there had been an unlawful failure to consult the claimants and others on amendments made to the planning application and that the council had unfairly failed to disclose unredacted two letters on which officers had relied to support their view that proposed studio spaces in the basement were workable and that their layout was acceptable.

By the time of that first judgment a second application for planning permission had already been made. It was granted on 9 August 2019. Richard Harwood QC had indeed spoken at the planning committee meeting on behalf of Holborn Studios, seemingly to no avail. Again judicial review. The campaign against redevelopment continued (for instance see Battle to save Holborn Studios continues as celebrities and photographers line up in support (Hackney Citizen, 18 November 2019)).

When the case was heard in front of Dove J on 17 March 2020 there were three grounds of challenge but it is worth focusing on the first two, namely:

Ground one is a sequence of legal contentions related to the information provided in respect of the viability assessment for the proposed development which informed the contributions which were sought from the interested party, in particular in relation to affordable housing. It is said by the claimant that the defendant’s approach to this issue failed to comply with national planning policy in relation to the provision of information in respect of viability assessments; that the defendant’s approach was in breach of a legitimate expectation in respect of the disclosure of viability information and, finally, that as a matter of law the viability information provided was in breach of the defendant’s duties in relation to the publication of background papers to the committee report. Ground two is the allegation that the defendant’s guidance for the members of its planning committee were unlawful in so far as they precluded members from reading lobbying material submitted to them by consultees and required that instead this material was passed to officers unread.”

For a very good summary of the relevant facts, and the conclusions reached by the judge, I will now pause for two minutes whilst you read this: Access to viability assessments: Holborn Studios 2 (Richard Harwood QC, 11 June 2020).

Or even better if you have ten minutes, read the judgment itself. Summaries sometimes do not bring across the starkness of the judge’s description of events and analysis.

Some choice passages from the judgment:

On viability

A concern was raised by Mr Harwood at the planning committee meeting that “that the material on viability in the public domain appeared to demonstrate that the interested party’s consultants had undertaken the exercise on the basis of a residualised value, rather than taking an existing use value plus approach which was what was required by policy” and the point was also taken up by a councillor. Dove J chooses to relate the following, including a verbatim quotation of the meaningless response that councillors received:

Mr Robert Carney, who had been one of the defendant’s officers and who had been involved with the consideration and negotiation of the viability of the development (albeit that by the time he attended the committee meeting he was working for a consultancy) was called upon to address these concerns, and in particular whether or not a residualised value approach had been taken to the viability exercise. His observations in respect of this issue, as recorded on the transcript contained within the court’s papers, were as follows:

“Perhaps I’ll deal with the specifics of the, the values of where- of where they have been reported and Stuart will want to talk about, uh, the transparency of the information in the public domain. So I just want to clarify, we’ve used an existing use value plus approach in accordance with all guidance and the- what that approach- that approach forms was known as benchmark land value, that’s referred to in the table at 5.3.62. Uh, you have the applicant’s proposed benchmark land value and then the independent assessor’s benchmark land value. And what you do is you, uh, look at the residual land value and the appraisal, basically, given them the residual land value, show them the appraisal equals or is more than the benchmark- benchmark land value, the scheme is viable. Because what that means is that a hypothetical, uh, developer can purchase the site at a figure above the benchmark land value. And we see in appraisal it’s just shy of that benchmark land value. But basically, um, through our negotiations we accepted that the scheme had maximised, uh, it’s viability with the, um, agreed contributions.”

On the failure to make all of the viability appraisal information as background papers to the committee report;

“The first point raised is whether or not the defendant complied with its obligations under the 1972 Act in relation to the provision and listing of background papers. In short, I have no doubt that the defendant failed to comply with its obligations under section 100 D of the 1972 Act, not simply in relation to listing background papers but also in failing to provide them for inspection. It is clear from the evidence which has been set out above, including in particular the evidence of Mr Carney, that there was a significant quantity of documentation bearing upon the viability issues generated both before and especially after those documents that were published in relation to viability on the defendant’s website. It appears clear from Mr Carney’s evidence that, after the material from September 2018 which the defendant published, there was a significant volume of further technical work addressing ground rents and their impact on existing use value, the derivation of figures for the planning obligations and CIL and also the identification of a benchmark land value. Whilst not all of this material needed to be produced and listed it is simply inconceivable that none of this material would have qualified under section 100 D (5) of the 1972 Act. Clearly the contents of the committee report dealing with the viability exercise and its ultimate conclusions as to the affordable housing contribution which could legitimately be required, depended upon the contents of this material. There was, therefore, information which should have been listed and of which copies should have been provided for inspection.”

On the approach that should be taken to viability appraisal:

“In my view there are some clear principles set out in the Framework and the PPG to which it refers. Firstly, in accordance with the Framework viability assessments (where they are justified) should reflect the approach set out in PPG, and be made publicly available. Secondly, and in following the approach recommended in the Framework and the PPG, standardised inputs should be used including, for the purpose of land value, a benchmark land value based upon existing use value plus as described in the PPG. Thirdly, as set out in the PPG, the inputs and findings of a viability assessment should be set out “in a way that aids clear interpretation and interrogation by decision-makers” and be made publicly available save in exceptional circumstances. As the PPG makes clear, the preparation of a viability assessment “is not usually specific to that developer and thereby need not contain commercially sensitive data”. Even if some elements of the assessment are commercially sensitive, as the PPG points out, they can be aggregated in a published viability assessment so as to avoid disclosure of sensitive material.”

On whether elements of viability information should be treated as exempt from disclosure:

“As Mr Harwood pointed out in his submissions, there is an exception to the definition of exempt information contained in paragraph 10 of Schedule 12 to the 1972 Act where “the public interest in maintaining the exemption outweighs the public interest in disclosing the information.” In my judgment the existence of the policy contained in the Framework and the guidance contained in the PPG have an important bearing on the consideration of whether or not there is a public interest in disclosing the information contained in a viability assessment (even if it is properly to be characterised as commercially sensitive, bearing in mind the observations in the PPG about the extent to which information in such an assessment would be specific to a particular developer). It is clear from the material in the Framework and the PPG that save in exceptional circumstances the anticipation is that viability assessments, including their standardised inputs, will be placed in the public domain in order to ensure transparency, accountability and access to decision-taking for communities affected by development. The interests which placing viability assessments into the public domain serve are clearly public interests, which in my view support the contention that such assessments are not exempt information unless the exceptional circumstances spoken to by the PPG arise and solely an executive summary should be put in the public domain. It is unclear to me based on the material before the court how, if ever, the defendant ever considered the question of the public interest in relation to this exemption in the context of the relevant national planning policy. I am, therefore, unable to accept the submission advanced on behalf of the defendant that their failure to comply with section 100 D of the 1972 Act was a matter justified by the contention that the material withheld was exempt information. “

As to whether the viability information publicly available was comprehensive and coherent:

“In my view there are critical elements of the material in the public domain in relation to viability, set out in the documentation published on the defendant’s website and in the committee report, which are opaque and unexplained.”

If you deal regularly with viability appraisal you then need to read in full paragraphs 67 to 70 for an account by the judge of some of the deficiencies.

Drawing the threads together:

““Drawing the threads together, the material contained in the public domain at the time when the decision was taken by the planning committee to resolve to grant planning permission was inconsistent and opaque. It contained figures which differed in relation to, for instance, benchmark land value and the differences between the figures were not explained. No explanation was provided as to how the benchmark land value had been arrived at in terms of establishing an existing use value and identify a landowner’s premium as was asserted to have been case. Read against the background of the policy and guidance contained in the Framework and the PPG it was not possible to identify from the material in the public domain standardised inputs of the existing use value and landowner’s premium, and the purpose of the policy to secure transparency and accountability in the production of viability assessment was not served. In particular, it was plain from the material available at the time of the decision (in particular in terms of the material inconsistencies in the material produced in September 2018 and the differences from the material in the committee report) that there was substantial additional background material on which the committee report was based which was neither listed nor available for inspection in accordance with the requirements of the 1972 Act. In my view the principles identified in the case of Joicey by Cranston J at paragraph 47 are clearly on point, since the purpose of having a legal obligation to confer a right to know in relation to material underpinning a democratic decision-taking process is to enable members of the public to make well-informed observations on the substance of the decision. The failure to provide the background material underpinning the viability assessment in the present case, in circumstances where such material as was in the public domain was opaque and incoherent, was a clear and material legal error in the decision-taking process. In reality, in my judgment, the material with which the public was provided failed Mr Fraser-Urquhart’s own test of being adequate to enable the member of the public to make a sensible response to the consultation on the application.”

On the council’s attempt to prevent the direct lobbying of councillors

“… bearing in mind the importance of the decisions which the members of the planning committee are making, and the fact that they are acting in the context of a democratically representative role, the need for the communication of views and opinions between councillors and the public whom they represent must be afforded significant weight. In my view, it would be extremely difficult to justify as proportionate the discouragement, prohibition or prevention of communication between public and the councillors representing them which was otherwise in accordance with the law.”

“Receiving communications from objectors to an application for planning permission is an important feature of freedom of expression in connection with democratic decision-taking and in undertaking this aspect of local authority business. Whilst it may make perfect sense after the communication has been read for the member to pass it on to officers (so that for instance its existence can be logged in the file relating to the application, and any issues which need to be addressed in advice to members can be taken up in a committee report), the preclusion or prevention of members reading such material could not be justified as proportionate since it would serve no proper purpose in the decision-taking process. Any concern that members might receive misleading or illegitimate material will be resolved by the passing of that correspondence to officers, so that any such problem of that kind would be rectified. In my view there is an additional issue of fairness which arises if members of the planning committee are prevented from reading lobbying material from objectors and required to pass that information unread to their officers. The position that would leave members in would be that they would be reliant only on material from the applicant placed on the public record as part of the application or the information and opinions summarised and edited in the committee report. It is an important feature of the opportunity of an objector to a planning application to be able to present that objection and the points which they wish to make in the manner which they believe will make them most cogent and persuasive. Of course, it is a matter for the individual councillor in the discharge of his responsibilities to choose what evidence and opinion it is that he or she wishes to study in discharging the responsibility of determining a planning application, but the issue in the present case is having the access to all the material bearing upon the application in order to make that choice. If the choice is curtailed by an instruction not to read any lobbying material from members of the public that has a significant impact on the ability of a member of the public to make a case in relation to a proposed development making the points that they wish to make in the way in which they would wish to make them.”

“The standard correspondence clearly advised against members of the public writing directly to members of the committee; there was no warrant for that advice or discouragement and it impeded the freedom of expression of a member of the public who was entitled to write to a member of the planning committee setting out in his or her own terms the points they wish to be considered in respect of an application and expect that the member would have the opportunity to read it. It appears that Councillor Stops was under the impression that he was to resist being lobbied by either an applicant or member of the public, and Councillor Snell had apparently taken legal advice to the effect that he should refrain from reading any lobbying letter and forward it on to officers. Neither of these approaches reflects the defendant’s Code, nor does it reflect the entitlement to freedom of expression in accordance with the legal principles set out above.”

Concluding remarks

The case is a really helpful reminder to all of us of a few lessons:

Don’t get blinded by bad science. Good science is clear. Yes, viability appraisal includes some maths and you need to make sure that you understand the structure of the policy as to how viability appraisals should be conducted for the purposes in relation to the determination of planning applications. Subject to those points, if you don’t understand what is being said, you need to probe. A good viability appraisal does make sense and does tie in with policy and indeed common sense. And the process of arriving at an agreed viability appraisal should not be a behind the scenes negotiation. Memories of the R (Rainbird) v London Borough of Tower Hamlets (Deputy Judge John Howell QC, 28 March 2018) line of cases on daylight and sunlight – if the specialist input is not clear, and carried out in accordance with the relevant technical guidance such that the decision maker is not significantly misled, or if the detail that is needed for anyone to make sense of the position is held back, there is a plain risk of the resultant planning permission being struck down.

The approach to be taken to viability, both in terms of methodology and openness, has changed as a result of Government policy, and that is recognised by the courts.

Recognise that the value of having decisions taken at planning committee by elected councillors rests both in their being properly briefed by officers and also in their role as democratic representatives, not shielded from appropriate lobbying as if they were some jury.

However upsetting it may be for those whose decisions are overturned (and I recognise that there can be unwelcome consequences), without judicial review decision makers would pretty much be free to operate with impunity, to hell with the evidence (see also Westferry Printworks). That would be a farce.

Simon Ricketts, 13 June 2020

Personal views, et cetera

Apparent Bias, Unfair Hearings

The continuing to-do about Secretary of State’s admission of “apparent bias” in the Westferry Printworks case got me thinking about other apparent bias cases and the overlap with the right to a fair hearing – basically as an excuse to mention this week’s startling case from the Supreme Court, Serafin v Malkiewicz (Supreme Court, 3 June 2020). All the cases in this bias/unfair hearing area have a gossipy, “you need to have been there”, feel to them, and there are lessons in all of them for all decision-makers.

After all, for all the constant chatter about the rights and wrongs of our planning system, at its very root it needs to be fair, and seen as fair. Aside from a being fundamental principle of our legal system, the right to a fair hearing in front of an independent and impartial decision maker is also given force by way of Article 6 of the European Convention on Human Rights:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law…”

Serafin v Malkiewicz

Serafin v Malkiewicz is nothing to do with planning law. It concerns a libel action brought by a litigant in person who found himself against not so much the barrister on the other side but against the judge, Jay J (yes, really, non-lawyers, Jay J). He lost, badly. The Supreme Court judgment, by Lord Wilson attaches a schedule of extracts from the hearing in front of Jay J, which make truly excruciating reading – really and truly, an object lesson in how not to preside over any sort of hearing, let alone in relation to a litigant in person for whom English was not his first language. Imagine an inspector behaving in such a way.

The Supreme Court did not treat the issue in the case as one of potential apparent bias but as to whether the hearing had been fair. It referred to the distinction between the two principles, as described by Hildyard J in M&P Enterprises (London) Limited v Norfolk Square (Northern Square (Northern Section) Limited (High Court, 12 October 2018, namely that whereas “the fairness of a trial required objective judicial assessment, the appearance of bias fell to be judged through the eyes of the fair-minded and informed observer”.

… it is far from clear that the observer would consider that the judge had given an appearance of bias. A painstaking reading of the full transcripts of the evidence given over four and a half days strongly suggests that, insofar as the judge evinced prejudice against the claimant, it was the product of his almost immediate conclusion that the claim was hopeless and that the hearing of it represented a disgraceful waste of judicial resources.”

“… when one considers the barrage of hostility towards the claimant’s case, and towards the claimant himself acting in person, fired by the judge in immoderate, ill-tempered and at times offensive language at many different points during the long hearing, one is driven, with profound regret, to uphold the Court of Appeal’s conclusion that he did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and, that, in short, the trial was unfair. Instead of making allowance for the claimant’s appearance in person, the judge harassed and intimidated him in ways which surely would never have occurred if the claimant had been represented. It was ridiculous for the defendants to submit to us that, when placed in context, the judge’s interventions were “wholly justifiable”.”

The Court of Appeal had similarly concluded that the hearing had been unfair but had only concluded that part of the case be heard again. The Supreme Court went further:

“Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.”

Porter v Magill

The classic articulation of the apparent bias test is by Lord Hope in Porter v Magill (House of Lords, 13 December 2001): the “question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased”.

Porter v Magill was of course part of the Lady Porter/Westminster City Council “homes for votes” saga. An auditor, John Magill, had been appointed to consider whether “three councillors and three officers had, by wilful misconduct, jointly and severally caused a loss of approximately £31m to the council which they were liable to make good.”

One of the councillors’ grounds of appeal against Mr Magill’s findings of the auditor, John Magill, was on the basis of apparent bias evidenced by the manner in which, ahead of his full inquiry, he had announced his provisional findings:

“A televised announcement was arranged at which the auditor himself appeared and, although he said that his views were provisional, he expressed them in florid language and supported them by reference to the thoroughness of the investigation which he claimed to have carried out. There was a further feature of the event which should have had no place in the middle of a quasi-judicial inquiry. A stack of ring binders on the desk at which the auditor sat bearing the name of his firm for the benefit of the cameras was, ostensibly, under the protection of a security guard: unless it was being implied that the persons under investigation might wish to steal the documents, it is not clear what was the purpose of this posturing.”

The court did not accept that there was apparent bias. In the words of Lord Hope:

“I think that it is plain…that the auditor made an error of judgment when he decided to make his statement in public at a press conference. The main impression which this would have conveyed to the fair-minded observer was that the purpose of this exercise was to attract publicity to himself, and perhaps also to his firm. It was an exercise in self-promotion in which he should not have indulged. But it is quite another matter to conclude from this that there was a real possibility that he was biased…. The auditor’s conduct must be seen in the context of the investigation which he was carrying out, which had generated a great deal of public interest. A statement as to his progress would not have been inappropriate. His error was to make it at a press conference. This created the risk of unfair reporting, but there was nothing in the words he used to indicate that there was a real possibility that he was biased. He was at pains to point out to the press that his findings were provisional. There is no reason to doubt his word on this point, as his subsequent conduct demonstrates. I would hold, looking at the matter objectively, that a real possibility that he was biased has not been demonstrated.”

Broadview Energy

Turning to a case with greater similarities to the Westferry Printworks situation, in Broadview Energy Developments Limited v Secretary of State (Court of Appeal, 22 June 2016) the Court of Appeal deprecated informal lobbying attempts by MPs, in that case Andrea Leadsom MP’s attempts to stop a wind farm scheme, with a conversation in the Commons tea-room and numerous emails from her to the minister, including one referring to her “badgering [him] in the lobby”. Longmore LJ in that case indicated that he “would not endorse that part of the judge’s judgment [at first instance] in which he said that lobbying of Ministers by MPs was part and parcel of the representative role of a constituency MP with its implication that such lobbying was permissible even when the Minister is making a quasi-judicial decision in relation to a controversial planning application. MPs should not, with respect, be in any different position from other interested parties.”

The court’s deprecation fell short of determining that the decision was as a result unlawful. On the specific question of bias:

“Nor do I think it arguable that a well informed observed would consider that there was a real possibility of bias on the part of Mr Hopkins. The well-informed observer would know that it was the responsibility of the relevant Minister to make difficult decisions about controversial projects such as on-shore wind farms. He would also know that sometimes such decisions are, as this one was, finely balanced. He would not think that a Minister’s decision in favour of a vocal body of local objectors supported by their local MP showed any bias against the promoter of the wind farm project. He would accept that the Minister had to make a decision one way or the other and think that the parties should accept the outcome.

Nevertheless the accusation of bias made in this case shows how important the principle is that Ministers making planning decisions should not allow themselves to be lobbied by parties to the planning process or by local MPs. If they do allow it, accusations of bias are all too easily made however unjustified they may be once the proper principles exemplified by Magill v Porter [2002] 2 AC 357 are applied.”

Turning from the position of ministers to that of inspectors:

Turner

Turner v Secretary of State (Court of Appeal, 11 June 2015) was a case where an objector to the proposed redevelopment of the Shell Centre, on London’s south bank, argued that the inquiry inspector had been biased in the way that he had dealt with his case at the inquiry, alleging, as set out in the judgment, that the inspector had curtailed his evidence and submissions and had made adverse procedural rulings.

In determining whether the inspector had acted inappropriately, the Court set out the approach to be followed as follows:

“The notional fair-minded observer would appreciate a number of aspects of the present context: (i) an inspector’s role has a strong inquisitorial dimension, investigating matters in a way which will enable him to report helpfully to the relevant decision-maker, the Secretary of State; with that end in view, it is fair and appropriate for an inspector to seek to focus debate at an inquiry by making interventions to ensure that he is provided with material to assist him in his task; (ii) an inspector has to manage efficiently the conduct of an inquiry within a limited time-frame and involving a range of parties wishing to give evidence, make submissions and participate in cross-examination of witnesses; this may require robust case management in the interests of all participants; (iii) an inspector is entitled to expect, and may legitimately seek to encourage, focused questioning and short and focused answers in the course of cross-examination of witnesses; (iv) the inquiry process provides an inspector with relevant information through a range of media, including written opening statements, examination of plans and the making of detailed closing submissions, as well as through the evidence of witnesses (both by witness statement and orally in cross-examination), and an inspector is expected to have done a good deal of preparation before an inquiry commences and is entitled to seek to focus debate on particular issues in the form which is most likely to provide clarity about what is at stake and assistance for him in writing a report; and (v) as part of his inquiry-management function, and to encourage a focus on what is most likely to assist him in his reporting task, an inspector is entitled to give indications in the course of an inquiry of points which appear to him to be unrealistic or bad and to require concentration on what appear to him to be the real substantive points of contention or where continued debate will be most helpful to him. It is of course possible that an inspector may go too far in robust inquiry management or in closing down debate, so as to give an appearance of bias. But given the expectation that an inspector should be actively managing the inquiry process to ensure that it is efficient, effective and fair to all interested parties, it will be a rare case, as Woolf J observed, in which it is likely that robust inquiry management will be found to have done so.

Another part of the context is the guidance issued by the Planning Inspectorate in the form of “The Inspector’s Code of Conduct”. This sets out principles of conduct for inspectors. Amongst other things, they “should make their decisions and recommendations fairly and in the public interest”; “should not be fettered with pre-determined views and should not judge cases before they have considered the evidence”; “should not be influenced by irrelevant considerations or outside influences when making their decisions and recommendations”; “should avoid unnecessary delay in reaching their decisions and recommendations”; and “should treat each person with dignity and respect”, behaving “at all times with courtesy, patience and understanding, whilst at the same time ensuring that cases are conducted efficiently and effectively.” This guidance is designed to promote best practice. It does not in itself create the standard by which an appearance of bias is to be judged. For example, a lapse in courtesy or patience on the part of an inspector in the course of an inquiry will not in itself give an appearance of bias in the requisite sense. A good deal more than that would be required: cf HCA International Ltd v The Competition and Markets Authority [2015] EWCA Civ 492, in which even a serious element of actual unfairness of treatment of the appellant by the relevant public authority, which misled the appellant at one stage about an aspect of its inquiry, was found not to create an appearance of bias or pre-determination such as to prevent the same personnel in that authority from making a re-determination of matters in contention. (So that we are not misunderstood, and in fairness to the Inspector in the present case, we should add that on the limited evidence which is available we are not persuaded that he behaved discourteously to Mr Turner or anyone else at the inquiry).”

The court dismissed the appeal: “None of the matters relied on by Mr Turner, whether taken individually or together, indicate that there was a real possibility that the Inspector was biased. The Inspector acted properly and without giving any appearance of bias according to the relevant test in Porter v Magill.”

Satnam

Turner was applied in Satnam Millennium Limited v Secretary of State (Sir Duncan Ouseley, 8 October 2019). Satnam challenged the decision by the Secretary of State, on the recommendation of his inspector, to dismiss an appeal in relation a large development proposal in Warrington. Whilst the judge upheld the challenge on other grounds, he rejected a submission that the inspector had showed apparent bias in the way that he conducted the inquiry, as well as the site visit. Again the judgment is a good read as to the facts, particularly paragraphs 112 to 189. Extracts from the PINS manual for inspectors are at paragraphs 190 to 194 and the general legal principles are set out at paragraphs 195 to 206. The judge’s detailed conclusions, in which he rejects the various complaints, are at paragraphs 229 to 254. There are some interesting pointers as to the conduct of hearings and inquiries and as a cheerful point to end on…

Humour is not forbidden:

“The grumbling from Mr Griffiths about a resident giving her evidence in song, followed by the quick interchange over giving evidence in dance and northern humour, rather illustrated my concern about where he was pitching his concern. This was but a moment of light heartedness, essentially initiated by the witness, and briefly responded to by the Inspector. Some Inspectors might have kept silent; but there is nothing in this at all. Not all judges or counsel are humourless automatons either. Although it would avoid some problems if Inspectors were, it could create others at an Inquiry with feelings running high and large numbers of the public attending. This was all very much part of a legitimate judgment about how to run a difficult Inquiry in those venues, with the facilities, and participants there were.”

“I accept that there would have been an impression of familiarity with individuals to whom [the inspector] had spoken on a daily basis, but that does not contrast with how he spoke to the other participants; they were not ignored, their greetings, if any, dismissed. “Banter” is very much in the eye and ear of the beholder. I am not prepared to regard any of it as indicative of possible bias.”

Reading these various cases again, and thinking again about Westferry Printworks, doesn’t so much of this come down to common sense and the facts of each situation rather than the application of any difficult legal concepts? The courts may be surprisingly reluctant at times to intervene (which makes so telling the Serafin ruling, as well as the decision of the government legal department not even to seek to contest Westferry) but decision makers should know what’s not right and, equally importantly, what doesn’t look right.

Simon Ricketts, 6 June 2020

Personal views, et cetera

Revisiting Burkett: Should The JR Pre-Action Protocol Be Updated?

I have a simple suggestion this week, sparked by thinking about two judicial review cases, almost 20 years apart, both involving challenges to the adequacy of environmental impact assessment processes in relation to particular schemes. In both of them the indefatigable claimant environmental lawyer Richard Buxton was on the winning side. (If anyone asks why developers nowadays routinely spend significant amounts of time and money having their lawyers review draft application and EIA documents, the answer is mostly Richard).

But my suggestion isn’t about EIA, but is about when a potential claimant should notify a defendant authority that it is considered that grounds for a potential challenge have arisen. At the moment, there is no requirement to do that, by way of a letter written in accordance with the Administrative Court’s pre-action protocol, followed by the issue of proceedings, until it is all too late and permission has been issued. This of course is part of what makes judicial review such a powerful tool for objectors to development proposals – the ability to ambush by tripping the council up on a legal point when it’s too late for them to do anything about it. I intend no specific criticism of Richard (in that it’s not a feature at all of either of the cases mentioned in this post) but often only then does the claimant’s lawyer leap out of the bushes with a multi-page “aha and gotcha” letter.

The law was in a hopeless mess 20 years ago. No-one knew whether a claimant was safe to wait to challenge the relevant planning permission once it had been issued, or whether the challenge should be to any earlier decision in the process, for instance the authority’s resolution to approve the application.

The case which put that question to bed was R (Burkett) v London Borough of Hammersmith and Fulham (House of Lords, 23 May 2002).

It involved St George’s Imperial Wharf development in Fulham, “a mixed use development comprising 1,803 residential units (1303 private flats and 500 affordable dwellings in the form of flats and houses), an hotel, class A1 retail, class A3 restaurant, class D community uses, health and fitness club, class B1 offices, public open space and riverside walk, together with associated car parking, landscaping and access road.”

Richard acted for Mrs Burkett, who lived in a ground floor maisonette next to the site. The council resolved to approve the application on 15 September 1999 but before then he had written to the council alleging that the environmental impact assessment being relied upon was deficient. After the resolution he continued to complain but did not issue judicial review proceedings until 6 April 2000. The planning permission was not issued until 12 May 2000.

Why the delay? Well, those were the days. Legal aid for planning-related judicial review proceedings was still available and, having started his work on a pro bono basis, Richard had to wait until the Legal Services Commission had confirmed that legal aid would be granted to Mrs Burkett, on a nil contribution basis (which also gave protection against any adverse costs orders – in the days before any Aarhus protective costs order regime).

The council submitted that the claim was out of time and Richards J at first instance and then the Court of Appeal agreed. Shades of the Dill case I mentioned last week in that it was only the House of Lords that reached the contrary view.

Lord Slynn:

In my opinion, for the reasons given by Lord Steyn, where there is a challenge to the grant itself, time runs from the date of the grant and not from the date of the resolution. It seems to me clear that because someone fails to challenge in time a resolution conditionally authorising the grant of planning permission, that failure does not prevent a challenge to the grant itself if brought in time, i e from the date when the planning permission is granted. I realise that this may cause some difficulties in practice, both for local authorities and for developers, but for the grant not to be capable of challenge, because the resolution has not been challenged in time, seems to me wrongly to restrict the right of the citizen to protect his interests. The relevant legislative provisions do not compel such a result nor do principles of administrative law prevent a challenge to the grant even if the grounds relied on are broadly the same as those which if brought in time would have been relied on to challenge the resolution.”

Lord Steyn’s reasoning:

“45. First, the context is a rule of court which by operation of a time limit may deprive a citizen of the right to challenge an undoubted abuse of power. And such a challenge may involve not only individual rights but also community interests, as in environmental cases. This is a contextual matter relevant to the interpretation of the rule of court. It weighs in favour of a clear and straightforward interpretation which will yield a readily ascertainable starting date. Entrusting judges with a broad discretionary task of retrospectively assessing when the complaint could first reasonably have been made (as a prelude to deciding whether the application is time barred) is antithetical to the context of a time limit barring judicial review.

46. Secondly, legal policy favours simplicity and certainty rather than complexity and uncertainty. In the interpretation of legislation this factor is a commonplace consideration. In choosing between competing constructions a court may presume, in the absence of contrary indications, that the legislature intended to legislate for a certain and predictable regime. Much will depend on the context. In procedural legislation, primary or subordinate, it must be a primary factor in the interpretative process, notably where the application of the procedural regime may result in the loss of fundamental rights to challenge an unlawful exercise of power. The citizen must know where he stands. And so must the local authority and the developer. For my part this approach is so firmly anchored in domestic law that it is unnecessary, in this case, to seek to reinforce it by reference to the European principle of legal certainty

50. Thirdly, the preparation of a judicial review application, particularly in a town planning matter, is a burdensome task. There is a duty of full and frank disclosure on the applicant: 053/14/57 to RSC Ord 53, r 14. The applicant must present to the court a detailed statement of his grounds, his evidence, his supporting documents in a paginated and indexed bundle, a list of essential reading with relevant passages sidelined, and his legislative sources in a paginated indexed bundle. This is a heavy burden on individuals and, where legal aid is sought, the Legal Services Commission. The Civil Procedure Rules and Practice Direction – Judicial Review Supplementing Part 54 contain similar provisions: see also the Pre-Action Protocol for Judicial Review. An applicant is at risk of having to pay substantial costs which may, for example, result in the loss of his home. These considerations reinforce the view that it is unreasonable to require an applicant to apply for judicial review when the resolution may never take effect. They further reinforce the view that it is unfair to subject a judicial review applicant to the uncertainty of a retrospective decision by a judge as to the date of the triggering of the time limit under the rules of court.

51. For all these reasons I am satisfied that the words “from the date when the grounds for the application first arose” refer to the date when the planning permission was granted. In the case before the House time did not run therefore from the resolution of 15 September 1999 but only from the grant of planning permission on 12 May 2000. It follows that in my view the decisions of Richards J and the Court of Appeal were not correct.”

This remains the legal position. The current time limit provision in the Civil Procedure Rules is as follows:

“Where the application for judicial review relates to a decision made by the Secretary of State or local planning authority under the planning acts, the claim form must be filed not later than six weeks after the grounds to make the claim first arose, holding that time runs from the actual grant of planning permission not the resolution to grant“ (CPR 54.5 (5))

Note the reference to “the actual grant of planning permission”. What if the prospective challenge is not to the grant of permission but to another specific procedural step, such as the issue by the Secretary of State of an EIA screening direction, confirming that EIA is not required?

It seems to be accepted that it is not safe to store up challenges to such decisions until permission is issued (although query the precise legal distinction with a committee resolution – might it be that screening is a specific step expressly provided for in legislation?). The question didn’t need to be raised in Richard’s latest success (pending any appeal, at least), in Swire v Secretary of State (Lang J, 22 May 2020), where he acted for an objector to another residential development. Here the dispute was as to whether EIA was required. The council disagreed and issued a negative screening opinion. He applied to the Secretary of State for a screening direction and this was also negative. He then challenged the Secretary of State’s decision to issue that direction.

(Whilst it is nothing to do with the theme of this post, Lang J’s reasons for allowing the challenge are interesting and need to be borne in mind when screening processes are undertaken:

“There was a lack of any expert evidence and risk assessment on the nature of any BSE-related contamination at the Site, and any hazards it might present to human health. The measures which might be required to remediate any such contamination and hazards had not been identified. This was a difficult and novel problem for all parties to address. It was acknowledged by the Council in its screening opinion, acting on the advice of the Environmental Health Practitioner, that specialist advice would be needed to consider the remediation of prions associated with CJD/BSE. Therefore condition 21 merely referred to the requirement that a written method statement for the remediation of land and/or groundwater would have to be agreed by the Council without any party knowing what the remediation for BSE-related infection might comprise. The Defendant adopted the Council’s approach in his screening opinion. But because of the lack of expert evidence, the Defendant was simply not in a position to make an “informed judgment” (per Dyson LJ in Jones, at [39]) as to whether, or to what extent, any proposed remedial measures could or would remediate any BSE-related contamination. It follows that when the Defendant concluded that “he was satisfied that the proposed measures would satisfactorily safeguard and address potential problems of contamination” and that “the proposed measures would safeguard the health of prospective residents of the development”, he was making an assumption that any measures proposed under condition 21 would be successful, without sufficient information to support that assumption. As Pill LJ said in Gillespie, at [41], “the test applied was not the correct one. The error was in the assumption that the investigations and works contemplated in condition VI could be treated, at the time of the screening decision, as having had a successful outcome”. Whilst “not all uncertainties have to be resolved” (per Dyson LJ in Jones at [39]), on the facts this case was not one “where the likely effectiveness of conditions or proposed remedial or ameliorative measures can be predicted with confidence” (per Pill LJ at [34]). As the Site was proposed for residential housing, a higher standard of remediation would be required than if it were intended to adapt it for an industrial use, or merely to decontaminate it and return it to woodland (some sites will never be suitable for residential housing, because of industrial contamination).

Mr Honey relied upon the advice given to the Defendant by the Environment Agency, which advised that conditions requiring risk assessment and remediation proposals would be sufficient to mitigate against potential adverse impact on the groundwater. The Environment Agency previously advised the Council that without conditions “the proposed development poses an unacceptable risk to the environment”. I do not consider that the advice from the Environment Agency justified the approach adopted by the Defendant. It confirmed the view of the Environmental Health Practitioner and the Council that further investigation and assessment was needed. It did not provide the Defendant with any evidence that there was no risk of adverse environmental impacts, nor that mitigating measures had as yet been identified which would satisfactorily overcome any such risk. Moreover, it advised that its remit was limited to the protection of the soil and groundwater, and the impact on human health – crucial to this case – was a matter for the Environmental Health Officer. It was not the Environment Agency’s responsibility to advise the Defendant on the legal requirements for undertaking a screening opinion, in the light of Gillespie and the other authorities, and on my reading of the email, it did not purport to do so.

Finally, I have some concerns about the final paragraph of Mr Carpenter’s email to his manager, dated 6 August 2019, whilst reminding myself that this was not part of the formal decision. He said:


“I acknowledge that this case is quite finely balanced. …I am, however, not convinced by what would be achieved by issuing a positive Screening Direction as all the issues have been thoroughly investigated in detailed studies/assessments submitted as part of the planning application process, other than giving the objectors “another bite of the cherry”.”

Plainly he was mistaken in believing that the issue of BSE contamination had been thoroughly investigated in the reports submitted with the planning application, as they were all completed before the developer became aware that BSE-infected carcasses had previously been disposed of at the Site. If this view informed his decision-making, it was a significant error.

Further, on my reading, he appears to suggest that, in a case where the question whether the proposed development was likely to have significant effects on the environment was “finely balanced”, an EIA would be an unnecessary extra step if the issues were “thoroughly investigated” outside the EIA procedure. However, in Champion Lord Carnwath warned against using analogous procedures instead of EIA as to do so “would subvert the purposes of the EIA Directive for that to be conducted outside the procedural framework (including the environment statement and consultation) set up by the Regulations” (at [45]). In this case, the general public does not have the right to be consulted on the developer’s reserved matters applications under conditions 21 and 22, and so the EIA procedure would provide the only opportunity for local people to be consulted on proposed measures relating to BSE contamination at this Site, as they were not set out in the reports submitted with the planning application. So, contrary to Mr Carpenter’s belief, an EIA procedure would not provide objectors with “another bite of the cherry”.

It is not entirely clear what Mr Carpenter meant by the case being quite “finely balanced” as he did not set out the factors which he found to be in favour of an EIA, but it is important to bear in mind that Lord Carnwath also advised in Champion that “[a]pplication of the precautionary principle, which underlies the EIA Directive, implies that cases of material doubt should generally be resolved in favour of EIA.” (at [51]).

In conclusion, I consider that the Defendant made the same error as in the Gillespie case, and thus his decision that EIA was not required was vitiated by a legal error.”)

Back to my main theme: when should a potential claimant notify a defendant authority that it is considered that grounds for a potential challenge have arisen? This wasn’t the issue in Burkett. Everyone was well aware of the potential claim, it was just a question as to when the proceedings should have been issued. What if Richard had kept quiet until the permission had been issued before raising any legal concerns? What would their lordships have made of that?

At present, that sort of behaviour is not the best way to impress a judge but we see it too often – where a prospective claimant identifies proposed grounds of challenge in a pre-action protocol letter only when the planning permission is finally issued and it is too late for the relevant authority and applicant to rectify the alleged defect, even if the grounds arose from a committee resolution many months previously and could have been dealt with by, for instance, a return to committee if only the point had been raised before the permission was issued and it was too late.

The Administrative Court’s pre-action protocol for judicial review, a “code of good practice” which “contains the steps which parties should generally follow before making a claim for judicial review”, says nothing expressly to discourage that approach, in that it is all at a general level that does not engage with the specific peculiarities of planning processes, where on a major scheme there can be significant delays between a resolution to grant and issue of the permission, due to subsequent negotiations in relation to the section 106 agreement and the possible need to refer the application to the Secretary of State and/or the Mayor of London:

“The aims of the protocol are to enable parties to prospective claims to—

(a) understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;

(b) make informed decisions as to whether and how to proceed;

(c) try to settle the dispute without proceedings or reduce the issues in dispute;

(d) avoid unnecessary expense and keep down the costs of resolving the dispute; and

(e) support the efficient management of proceedings where litigation cannot be avoided.”

“Where the use of the protocol is appropriate, the court will normally expect all parties to have complied with it in good time before proceedings are issued and will take into account compliance or non-compliance when giving directions for case management of proceedings or when making orders for costs”

My simple suggestion is for the pre-action protocol to be amended so as to advise prospective claimants that they should never “store up” prospective grounds of challenge until the planning permission is issued but make them known to the prospective defendant authority and potential interested parties without unreasonable delay and with the objective of giving the parties to address the grounds (if necessary by corrective administrative steps) before the planning permission is issued and before the authority is thereby functus officio ie before it is too late to undo the administrative step of issuing the permission.

And, if I may have a follow up suggestion, would it be so very difficult for there to be a publicly accessible website which identifies all judicial review proceedings which have been filed (even if the underlying papers are not immediately accessible)? Many agreements in relation to land transactions are conditional upon a planning permission being free from legal challenge. Each day matters in the context of the transaction and given the vagaries of document service, particularly in relation to interested parties, and the risks of relying on checking calls made to the court when large amounts of money are at stake for the client, surely there is a better way?

Simon Ricketts, 30 May 2020

Personal views, et cetera

Court Challenges Undo Previous Blog Posts: Westferry, Dill

No-one embarks lightly on litigation but there have been two striking examples this week of what it can achieve. Sometimes it doesn’t even need a hearing (first example) and sometimes it’s on the final roll of the dice (second example).

Westferry Printworks

The Secretary of State’s decision to grant planning permission, against his inspector’s recommendations, for a large development on Docklands – with the decision issued a day before the developer’s CIL liability would have increased by up to £50m – was an eye opener. I covered it, and Tower Hamlets’ reaction, in my 18 January 2020 blog post Westferry Printworks Decision: LPA Reaction Unprintable.

The Council followed through with its threat of a legal challenge to the decision, as did the Mayor of London.

It was frankly surprising to hear this week that the Secretary of State has consented to judgment. I do not think that the consent order itself, which would set out the reasoning agreed by the parties and sealed by the court, is yet in the public domain but there are these two press statements from those involved:

Westferry Printworks: Secretary of State Accepts “Apparent Bias” in His Decision and Consents to Judgment (Francis Taylor Building press statement, 21 May 2020) (FTB’s Melissa Murphy acted for the Mayor).

Council forces government to concede illegality in making decision on controversial Westferry Printworks scheme (London Borough of Tower Hamlets press statement, 22 May 2020) (Sasha White QC and Gwion Lewis have been acting for Tower Hamlets).

To quote from the FTB statement:

“The consent order reflects the fact that in pre-action correspondence, the Secretary of State explained that the decision letter was issued on 14 January 2020, rather than the following day, so that it would be issued before Tower Hamlets adopted its new local plan and CIL charging schedule. He accepted that the timing of the decision letter, thereby avoiding a substantial financial liability which would otherwise fall on the developer, would lead the fair minded and informed observer to conclude that there was a real possibility that he was biased in favour of the developer. He accepted that the decision letter was unlawful by reason of apparent bias and should be quashed. The Mayor/GLA’s challenge was therefore academic, but he agreed to pay their costs. “

Those of us not close to what happened can only speculate but why would the Secretary of State cave in rather than face a hearing? Was he worried as to what might be made public in a trawling over of internal correspondence and notes? Echoes of the Mayor’s recent consenting to judgment in the Kensington Forum case (see my 14 March 2020 blog post, London, Friday the 13th).

The appeal will now need to be redetermined and, which is an expensive consequence for the developer of these events, even if the appeal is allowed second time around, the higher CIL figure will be payable.

Dill

I recounted this saga, about a lost pair of urns which were the subject of a listed building enforcement notice, at the time of the Court of Appeal ruling (see my 1 December 2018 blog post Is It A Listed Building? No Statuary Right Of Appeal). I still like the title to the post but the rest of it is now out of date – the effect of the Supreme Court’s ruling in Dill v Secretary of State (Supreme Court, 20 May 2020) was basically to remove the word “no” from my blog post: in defending a listed building enforcement appeal it is now possible to raise the argument that the listed building is not in fact a building (and the court gives some guidance as to what constitutes a “building” for these purposes). See also this excellent summary: Supreme Court rules on the meaning of listed building (39 Essex Chambers, 20 May 2020 – Richard Harwood QC appeared for Mr Dill, instructed by Simon Stanion at Shakespeare Martineau).

Aside from the substantive legal points, which are important, the interesting thing about the case for me is that persistence paid off. The inspector found against him, Singh J at first instance found against him, the Court of Appeal found against him but Mr Dill and his legal team did not give up. The costs of losing would no doubt have been as significant for Mr Dill as the CIL consequences for Tower Hamlets in Westferry.

And whilst the outcome of the case did not remove the spectre for Mr Dill of continued battles – the listed building enforcement notice appeal would now need to redetermined – Lord Carnwath concluded his final judgment before retiring from the Supreme Court with these words:

I understand that this will be deeply frustrating for Mr Dill. There is as I understand it no suggestion that he acted other than in good faith in disposing of items which he believed to be his own disposable property, and had been so treated by his family for several decades. Since this problem was first drawn to his attention by the local authority in April 2015 he has been attempting to obtain a clear ruling on that issue. On the view I have taken, that opportunity has been wrongly denied to him for five years. Even if his appeal were ultimately to fail, the practicability of restoring the vases to their previous location in the grounds of Idlicote House is uncertain. Accordingly, this court’s formal order for remittal should not prevent the respondents from giving serious consideration to whether in all the circumstances it is fair to Mr Dill or expedient in the public interest to pursue this particular enforcement process any further.”

Concluding thoughts

Well done to the successful claimants and legal teams in both cases. But “snakes and ladders” and “final roll of the dice” analogies are not far off the mark, are they? How to arrive at a system that is more simple and not dependent on expensive, uncertain litigation? Perhaps by reducing the politics (removing the ability for the Secretary of State to recover appeals?), certainly by trying to make sure that legal principles are simpler (if you do the maths, in Dill one inspector and four judges were overruled by five judges, over those narrow “legal exam” questions, following submissions prepared by five barristers and their associated legal teams – the whole process ultimately to be paid for by us, the tax payer, save for those costs which Mr Dill cannot recover).

Simon Ricketts, 23 May 2020

Personal views, et cetera