REGINA v - and – LICHFIELD DISTRICT COUNCIL - and – CHRISTOPHER J.N. WILLIAMS [2001] EWCA Civ 304

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)(MR. JUSTICE TURNER)
[2001] EWCA Civ 304Case No Case No: C/2000/2229Venue Royal Courts of Justice, Strand, London, WC2A 2LL, Thursday 8th March, 2001
Between
REGINA- and – LICHFIELD DISTRICT COUNCIL - and – CHRISTOPHER J.N. WILLIAMSFirst Respondent SecondRespondentEX PARTE LICHFIELD SECURITIES LIMITEDApplicant
Before
Lord Justice PotterLord Justice SedleyLord Justice Jonathan ParkerMr. J. Taylor QC and Mr. G. Jones (instructed by Wilbraham & Co. for the Applicant)Mr. D. Mole QC and Mr. J. Dove (instructed by Moseley Chapman & Skemp for the first Respondent)Mr. M. Lowe QC (instructed by Wragge & Co. appeared on behalf of the Second Respondent)

LORD JUSTICE SEDLEY :

The

[1]following is the judgment of the court. The issues This is an appeal by Lichfield Securities Limited (LSL) against the dismissal by Turner J of their application for judicial review of a planning decision of Lichfield District Council (LDC). The decision, taken on officers' advice by LDC's planning committee on 1 April 1999, was to enter into a specified planning obligation agreement under s.106 of the Town and Country Planning Act 1990 and thereupon to grant planning permission for the development of land in the ownership of (with others) the second respondent Mr Williams. LSL object to the inclusion in the s.106 agreement of a contribution by Williams and his company to road infrastructure costs of a sum calculated on a formula which LSL consider to be to their detriment, but as to which they contend that they were not consulted. Turner J held that the decision to adopt the chosen formula, though rational, was not fairly arrived at; but he refused relief in the exercise of his discretion on the grounds that the application had not been made promptly and that in any event LDC could well reach the same decision again.[2]Every element of this decision is contested by one side or the other. We will consider the issues in this[3]LSL and Williams own adjacent sites on what was Fradley Airfield in Staffordshire. LSL had been in business for some time on a large site to the north of Wood End Lane. They had made a substantial contribution, exceeding £3m, towards road costs associated with their development pursuant to earlier s.106 agreements which also phased the permitted development to correspond with road improvements. Williams and his company Soleco were keen to start up a salad processing plant on their much smaller site; so much so that they started building in anticipation of planning permission. They also covenanted to adopt a "green transport plan" for bringing employees (other than directors) in and out by bus. One purpose of this was to reduce, at their own expense, the demands made by their development on the local road system.[4]LSL plainly had a legitimate interest in the amount which Williams was to be required under his s.106 agreement to pay towards the contribution which LSL had already made to local road costs. On 4 December 1998, three days after Williams' planning application had been made, LSL stated at a meeting of the Fradley Liaison Group (a working party which included LSL, LDC and the County Council but not Williams or Soleco) that they would resist the application unless a satisfactory formula was agreed between Williams and LSL's holding company for apportionment of the road infrastructure costs. At the following Liaison Group meeting on 8 January 1999 the method of apportionment was discussed: LSL understandably objected to a calculation based on their entire segment of the airfield when because of the agreed phasing the infrastructure costs related only to part of it; a proposition which seems to have been accepted as at least reasonable by LDC's representative. Some three weeks later LSL's solicitors, Wilbraham and Co, sent LDC a note of their calculation of costs and of two possible apportionments, stressing that the figures were not final and continuing:
"Once you have had an opportunity to consider the Note, we suggest that you contact us to arrange a time at which we and our clients can telephone you jointly in order to discuss its contents."
Each calculation took the first 100 hectares of LSL's site as its basis. The first produced a contribution from Williams of over £1m; the second, almost £230,000.[5]The Williams application and LSL's objection went to committee on 8 February 1999. The officers' recommendation, a public document, was in favour of approval subject to prior entry by Williams into a suitable s.106 agreement covering, among other things, off-site highway works. Their report concluded:
"… the outstanding issues are largely maters which can be resolved through suitable technical solutions."
[6]It is evident from the minutes of the Liaison Group, which met the following day, that LSL's solicitors knew all this. What they did not know until these proceedings were under way was that the "technical solution" was a calculation which LDC's officers had already agreed with Williams on 18 February 1999. Using the formula to which LSL object, it had produced the figure of £53,960 which was in due course incorporated in the s.106 agreement. The Liaison Group minutes record the following (IT is Ian Thompson of LDC; AMS is Alan Syers of LSL's holding company; RJW is Robert Waite, LSL's solicitor):
"9.2.2.3 IT said that it was for LDC to determine what contribution it required Williams/Soleco to make. LDC was assessing this and a number of alternative bases including (i) floor space; (ii) cost; (iii) acreage. IT did not wholly accept LSL's approach of using the first 100 acres only (AMS pointed out that this was 100 net and had been grossed up for the purpose of LSL's calculation), but would look to identify a percentage which seemed broadly satisfactory to LDC in planning terms and having regard to the various bases of calculation LDC was considering. 9.2.2.4 RJW said that there remained the question of mechanisms by which LSL would have the burden of infrastructure costs on it reduced to take account of contributions secured from Williams/Soleco. IT said he did not wish this to be discussed publicly and RJW confirmed that he wished simply, on a private and confidential basis as with the figures provided by LSL, to identify mechanisms early rather than wait until contribution had been finalised. IT queried the position as regards Wood End Lane and it was acknowledged that if contribution to these works from Williams/Soleco can be agreed early enough, then a mechanism could be included in the Section 278 Agreement. All communications concerned contribution and mechanisms are to be addressed to IT."
It is relevant to note that this dialogue occurred in a meeting from which Williams and Soleco were absent and proceeded on a clear assumption that LDC would continue to deal separately with LSL and with Williams over the cost apportionment. Mr David Mole QC for LDC points out, too, that Mr Waite (who was the author of the minute) could here be seen distinguishing carefully between methodology and amount.[7]On 1 March 1999 the application came again before the planning committee. The officers' report, which was still supportive, contained this passage:
"In order to satisfy the requirements of the Local Plan and provide for an equitable split of these costs the applicant will have to enter into a legal agreement to contribute a proportion of these costs and an undertaking to this effect has been received. The level of contribution would be fixed and secured through the recommended agreement under s.106 of the 1990 Act based upon the total amount of floorspace with outline permission to the north of Wood End Lane and the size of this proposal."
Thus LDC now made known in a public document the method of calculation which they proposed to adopt. That LSL knew of it is evident from the minutes of the next Liaison Group meeting on 16 March 1999, which contain these two significant paragraphs:
"9.2.2 Contribution Issues:- RJW said he had understood that LDC was considering the assessment of contribution on three alternative bases. RJW requested to know what these bases had produced in terms of figures and what amount of contribution appeared in the Section 106 Agreement. JL said that she thought that this information could be made available to LSL's team after the issue of the decision notice. RJW asked what the amounts of the contribution was. JL was not prepared to say. Section 106 Agreement RJW expressed his concern that LDC was refusing to provide LSL's team with a copy of the current draft Section 106 Agreement. JL said that LDC's Administrative Department had even expressed the view that a completed Section 106 Agreement would only be disclosed to a party having a legitimate interest in seeing it. JL said that she had suggested that LSL was such a party for the purposes of seeing the draft, but this had not been accepted. RJW said that once the Section 106 Agreement was completed, then it was a public document and it would be completely unlawful to refuse to disclose it to anyone in those circumstances."
[8]The previous day, 15 March 1999, Wilbraham and Co had written to LDC suggesting that "it would be in all parties' interests (including the Council's) if a reasonably open discussion could take place (albeit on a without prejudice basis) of the content of the s.106 agreement at the Liaison Group meeting tomorrow." The letter concluded by expressing the hope that "if no draft of the section 106 agreement is to be made available to us, it will at least be possible to discuss the terms of the document in reasonable detail tomorrow." It is now clear, however, that the contribution to be included in the s.106 agreement was already settled; and what happened at the Liaison Group meeting on 16 March is indicated by the citation in the previous paragraph.[9]Wilbraham and Co over the next two days repeated their request for sight of the draft s.106 agreement. LDC wrote back to say that they were liasing with Williams and the County Council about it; but no substantive response came. On 23 March 1999 Wilbraham and Co wrote to say that they were considering judicial review proceedings. LDC immediately handed the matter to solicitors, who replied that they could see nothing in the complaint. On 29 March 1999 Wilbraham and Co wrote a full letter setting out their various objections to the procedure and substance of Williams' application, but on 1 April 1999 the planning committee resolved to grant planning permission and the s.106 agreement was signed as described above. Wilbraham and Co learned of the decision when they telephoned for information on 8 April 1999.[10]The application for judicial review was issued on 7 May 1999. The leave application was adjourned by Scott Baker J to an oral hearing on notice to LDC and to Williams. Both respondents took advantage of service on them to attend before Keene J on the leave application and to argue, among other things, that the application should be refused for lack of promptness. Keene J in a fully reasoned judgment rejected that argument and granted leave. Rationality and fairness The law[11]Section 106 of the 1990 Act (amended by the Planning and Compensation Act 1991) provides, in short, that a developer may enter into an enforceable planning obligation with local planning authority requiring, among other things, the payment of money by the former to the latter. It is common ground in the present case that any such payment by Williams would be passed on to LSL to offset the payments already made by them to SCC.[12]It is fundamental to s.106 that it must be used only for legitimate planning purposes. A variety of people may have an interest in these - not only a potential financial beneficiary such as LSL but, for example, local people who want to be sure that their community is going to benefit appropriately from a development. It is only in the run-up to the entry into the s.106 obligation that these interests can have any worthwhile say, for they have no right of appeal if the authority's eventual resolution adopts an unsatisfactory agreement.[13]Turning to the relevant departmental guidance, it is necessary first to notice the passage in which Turner J, setting out LDC's arguments on rationality, cited Lord Keith's speech in Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 , 770:
"But the extent to which [an offered planning obligation] should affect the decision is a matter entirely within the discretion of the decision-maker, and in exercising that discretion he is entitled to have regard to his established policy. The policy set out in 16/91 [now 1/97] is intended to bring about certainty and uniformity of approach, and is directed among other things to securing that planning permissions are not bought and sold."
To this Turner J added:
"The importance of this passage is that it serves to underline the width of the discretion and judgment of a planning authority."
Whether this was LDC's submission or the judge's own view, it is incorrect. While Lord Keith's proposition that the authority is entitled to have regard to its established policy is of course right, it is also the case that in general it is obliged to do so: for reasons which he gives, that is what policies are for, so long as it is also remembered that having regard to a policy does not mean slavishly following it. Lord Keith's words are thus intended less to underline the width of a planning authority's discretion than to point to some of the constraints upon it.[14]The Secretary of State's guidance in Circular 1/97 says:
"6. To retain public confidence, such arrangements must be operated in accordance with the fundamental principle that planning permission may not be bought or sold. This principle is best served when negotiations are conducted in a way which is seen to be fair, open and reasonable; in this way, and properly used, planning obligations may enhance the quality of development and enable proposals to go ahead which might otherwise be refused. Annex B to this Circular explains the detailed policies which the Secretary of State considers provide the best means of ensuring that there is adherence to this principle. Amongst other factors, the Secretary of State's policy requires planning obligations to be sought only where they meet the following tests: (i) necessary; (ii) relevant to planning; (iii) directly related to the proposed development; (iv) fairly and reasonably related in scale and kind to the proposed development; (v) reasonable in all other respects."
Annex B spells out the effect of these principles. In particular it suggests (paragraph B2) that planning obligations. "should be necessary, relevant to planning, directly related to the proposed development, fairly and reasonably related in scale and kind to the proposed development and reasonable in all other respects." It goes on (paragraph B12) to say that developers should not be asked to contribute more than relates to the consequences of their development. Paragraph B19 reads:
"Public involvement B19. Local planning authorities are reminded that as far as practicable, the planning system must be seen to operate in the public interest. There is an obvious and legitimate interest in planning obligations; the process of negotiating planning obligations should therefore be conducted as openly, fairly and reasonably as possible. Planning obligations must be registered as local land charges. There is an obvious and legitimate public interest in planning obligations being publicly available. Members of the public should be given every assistance in locating and examining planning obligations which are of interest to them. As a minimum, planning obligations and related correspondence should be listed as background papers to the committee report relating to the development proposal concerned (see section 100D of the Local Government Act 1972). Authorities would need a very strong case either to exclude the press and public when discussing a planning obligation or to determine that connected correspondence should be kept from public view. Only in very exceptional cases should local planning authorities agree to the imposition of a duty of confidentiality in respect of planning obligations. Authorities should note that section 101 of the 1972 Act confers order-making powers on the Secretary of State, which enable the categories of exemption from the access to information provisions to be changed."
Was the decision rational?[15]LDC had to find an arithmetical formula which made logical sense as a way of apportioning the road infrastructure costs between two developers of unequal size with sites in different phases of development. If a choice existed, whichever formula was chosen was likely to benefit one developer more than the other. It follows that unequal impact could not, of itself, demonstrate a want of rationality.[16]Although, for a reason which is not immediately apparent, Turner J deferred his consideration of rationality to the stage at which he considered the exercise of his discretion, he concluded without hesitation at that stage that the formula agreed and adopted by LDC lay within the range of reasonable responses open to it. We think the same. The intrinsic rationality of the formula adopted in the present case can be addressed without setting it out in detail. This is because Mr John Taylor QC, for LSL, has limited his challenge to the use by LDC, as its criterion of apportionment, of the entirety of the floorspace included in LSL's outline planning permission as against Williams' actual floorspace. The resultant difference, LSL say, can be seen from their alternative calculations based upon an allocation to them of 100 hectares and mentioned in paragraph 4 above. But it is the logic of the method, not its outcome, which Mr Taylor submits is irrational because it fails to compare like with like.[17]LDC's rationale is debated at length in the affidavits. But it boils down in the end to the simple fact that LDC, basing itself on facts known to it, made the assumption that the whole of the site for which LSL had outline planning permission would in the course of the next several years be developed. This was on the evidence a permissible assumption, and from it the calculation followed. It was also reasonable to exclude, as was done, land over which neither Williams nor LSL had control. Accordingly this ground of challenge fails. Nonetheless, the fact that LDC's chosen assumption was a rational one did not exclude the possible adoption of some other starting assumption if it could have been shown by LSL to be equally or more appropriate in all the circumstances. Mr Taylor submits that LSL was denied the opportunity to persuade LDC of this possibility. Was the decision procedurally fair?[18]Mr Taylor submitted, cogently, that the more apparent it became that a variety of formulae, producing heavily discrepant outcomes, was legitimately available to LDC, the more unfair it became to have excluded LSL from discussion about which formula to adopt. He complained that the course adopted by LDC had frustrated LSL's legitimate expectation of a further opportunity to comment before the decision was taken. Mr Mole, supported in this as in all other regards by Mr Mark Lowe QC for Williams, argued that on analysis LSL could be seen to have had all the information they needed in good time to intervene in the planning committee's decision on 1 April 1999, had they wished to do so. In particular, they knew from the agenda papers for 1 March 1999 that the planning committee had adopted its officers' advice to compare the area of LSL's outline permission with that of Willams' actual site. At the Liaison Group meeting on 16 March the interest shown by LSL was accordingly in what the various possible formulae yielded, not in what they were. But the figures to be put into the chosen formula could, said Mr Mole, be commercially sensitive and were rightly withheld.[19]Turner J found for LSL on this issue. He held, correctly in our view, that legitimate expectation is an aspect of fairness and that fairness is a matter of law for the court. Like us, he was unimpressed by LDC's plea of confidentiality. He said:
"No doubt, as with any negotiations, until an agreement was close each side wished to be able to alter its position without embarrassment. That is what negotiation is all about. In my judgment there can be no doubt that fairness dictated that such discussions should take place. I doubt whether the addition of the concept of legitimate expectation adds in any way to the strength of the applicant's position …"
Again, we respectfully agree. There was no particular practice, and no special promise made to LSL, which added significantly to what fairness in any event required. But nothing that has been discussed in this case merited concealment on grounds of commercial sensitivity. Not untypically, each side was willingly involved in negotiations with LDC which excluded the other, Williams through the planning process, LSL through the Liaison Group; and to that extent it may be said that LSL's protest about the one-sidedness of the procedure has a somewhat hollow ring. That said, however, it is with the local planning authority that legal responsibility for fair public administration rests and LDC's task, principally through its officers, was to ensure that neither party acquired an inside track, whether by spurious reliance on commercial confidentiality or through a special negotiating relationship.[20]As to this, Turner J concluded, in short, that throughout March 1999 LSL were given the impression that the consultation which was being conducted with them by LDC was meaningful, when in reality the formula which was to be adopted had been agreed between LDC's officers and Williams in mid-February. The unfairness of this, in his judgment, lay not so much in the false impression which was given to LSL as in their consequent want of any effective input into a decision in which they had a financial interest.[21]Mr Taylor, while not disputing the possibility of deducing the intended basis of the contribution formula from the agenda materials for 1 March, supports Turner J's decision on this issue on the broader ground that LDC's conduct ignored not only the principles of common fairness but the Secretary of State's explicit policy guidance about the need for openness at every stage of the decision-making process. The formula which was agreed on 18 February between LDC's officers and Williams was not exhibited, as it could and should have been, to the 1 March agenda papers; and the draft s.106 agreement was likewise kept secret until it was signed. As a consequence LSL did not and could not know, until it was too late to do anything about it, what Williams' contribution was to be. While in the present situation LSL are obliged to take their chance on an adverse fresh calculation, so long as it is fairly arrived at, their concern in the spring of 1999 was to know whether the end product of the formula was going to be a s.106 agreement containing an acceptable contribution by Williams to the road infrastructure costs. Knowledge of the broad basis of the formula was some assistance to this end; but at no stage, says Mr Taylor, did LSL have enough information to make the full calculation for themselves.[22]We have no difficulty in accepting that LDC's failure to bring LSL and Williams into a single process of consultation, however brief, about the best formula for apportioning the road infrastructure costs was unjustified and was potentially unfair, in the circumstances, to LSL. But potential unfairness is not enough. It has been authoritatively said that there is no such thing as a technical breach of natural justice: R v Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344 per Stocker LJ at para. 53 Before treating this as a universal axiom, however, it is necessary to have regard to what Bingham LJ said at para. 60: "This is a field in which appearances are generally thought to matter"; and to consider how the two propositions would fit together in a case where, say, a defendant has been denied a chance to speak in mitigation before being sentenced, even though he cannot show that he would have had anything useful to say. What can be more confidently said is that in the field of public administration, absent some mandatory procedural scheme, it is the combination of process and impact which must be shown to have been unfair if a public law challenge is to succeed.[23]In that context it is relevant to consider whether the outcome would have been the same whatever process was adopted. If the impugned decision was all but inevitable, there may be a ground for concluding that there was no substantive unfairness in reaching it by a process of consultation which might seem perfunctory or lacking in due process in a case where alternative solutions required to be carefully weighed. But, before so concluding, the court - and therefore a wise public authority - must have regard to the important inhibitors upon the mode of reasoning listed by Bingham LJ in Ex parte Cotton (ante) at para 60. Unfortunately it does not seem to us that Turner J. approached the matter in this way. Instead he postponed the question of whether or not LDC's decision would have been likely to be different even after further consultation to the stage at which he considered whether to exercise his discretion to refuse relief. At that later stage, having concluded not that the decision was inevitable but merely that it could well be re-adopted if the present decision were quashed, he added that conclusion to his findings of undue delay and prejudice to good administration as a reason to refuse relief. Thus a factor which was insufficient to avoid a finding of unfairness was elevated into a reason to refuse relief.[24]Coming back to the question of substantive unfairness, in our view LDC have failed entirely to show that the formula favouring Williams was the only feasible outcome of an open consultation process. LSL's counter-proposals were also worthy of discussion; and there were no doubt other formulae which LDC might have considered for itself.[25]But that does not conclude the question of fairness. Mr Mole and Mr Lowe submitted that, even if LDC's conduct is open to the criticism that it was poor public administration, it did not cross the legal boundary between the fair and the unfair. We do not agree. We consider that Mr Taylor is right when he urges that the authority's conduct was not simply unsatisfactory but unfair in excluding LSL from a decision which affected them. The only remaining question is whether LSL, expertly advised and represented as they were, had sufficient information, advice and resources to make up the leeway and to submit anything they wished to the planning committee at its decisive meeting on 1 April: in other words, whether there was in the end any substantive unfairness to them.[26]In our judgment LSL are entitled to succeed on this issue. It is true that LSL knew from the agenda of 1 March what the key basis of comparison was to be (a point to which we shall have to return). They also knew from at latest 15 March that they were going to be denied knowledge of the remaining elements of the preferred formula until the decision was formally made and the s.106 agreement was sealed. They must also have been aware that use of the full area of their outline permission in LDC's calculations would work against them by comparison with their own proposal that 100 hectares should be used. There was nothing therefore to stop LSL from making a submission for the planning committee to consider at its meeting on 1 April. Notwithstanding all this, what seems to us to tilt the balance in LSL's favour is that, had this happened and the adverse formula then been adopted, LSL would still have had a legitimate grievance on the ground that LDC's mind had to all appearances been closed since February 1999 by its one-sided negotiation and agreement with Williams (see paragraphs 4 to 6 above): in other words, that what happened in February 1999 had corroded the entire process. Moreover, LDC had continued, through the Liaison Group, to give LSL the impression up to mid-March that there was still a worthwhile dialogue to be had about the formula. If a submission to the planning committee had been made, and if it had procured a balanced consideration of the possible formulae, LSL could have had no complaint. But just as it is for a public authority (see paragraph 24 above) to establish that no harm has in practice resulted from its failure to act fairly, so we consider it is for such a public authority to make out any case that the remedy for its own unfairness lay in the applicant's hands. In the present case there is no reason to believe, much less any evidence to show, that a late submission to the planning committee on 1 April 1999 could have undone the effect of the February agreement to the extent of procuring reconsideration of the available formulae.[27]This is not to say that by mid-February the pass had been irretrievably sold. It was open to LDC at any stage before 1 April to restore the process, consult openly with LSL and Williams and go back to committee with advice fairly arrived at and intelligibly explained in the context of any rejected alternatives. Instead, and unfortunately, LDC became increasingly reticent, LSL's solicitors became increasingly threatening, LDC went to its own solicitors who showed little comprehension of what was a legitimate complaint, and the entire opportunity to put the policy of Circular 1/97 into practice was lost. In our view it was essentially LDC's fault that all this happened, and LSL were never afforded a sufficient opportunity to reverse its effect. Delay and discretion Promptness[28]Order 53 rule 4(1) of the Rules of the Supreme Court, formerly provided:
"An application for permission to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made."
This is now replicated and replaced in its principal provision by Part 54.5 of the Civil Procedure Rules:
"(1) The claim form must be filed – (a) promptly, and (b) in any event not later than 3 months after the grounds to make the claim first arose."
The rule goes on to provide that this time limit cannot be waived by agreement between the parties; but it is qualified by the provision of CPR 3.1(2)(a) that the court may extend or shorten the time for compliance even if that time has expired. S. 31(6) of the Supreme Court Act 1981 provides:
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant- (a) leave for the making of the application; or (b) any relief sought on the application if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."
Some account of the unhappy history of this provision can be found in the recent judgment of this court in Ex parte Burkett (C/2000/2480; 13 December 2000), paragraphs 22 and 23.[29]It is the respondents' submission that LSL's application was not made promptly. They say that arguable grounds for this application first arose on or shortly after 1 March 1999, when the planning committee resolved on the challenged basis for the contribution formula. Turner J agreed with this and concluded that the consequent lack of promptness was critical. He may or may not have been right in his view that the opportunity first arose in March. If he was, then for the reasons we have given it may still have been quite reasonable for LSL initially to seek a copy of the draft s.106 agreement, which would have told them whether in practice there was anything to worry about; and reasonable, by the same token, to wait until they learned what had come out of the planning committee's meeting on 1 April before issuing proceedings; especially when the eventual proceedings were issued within three months of the 1 March decision, albeit the decision on which the application was based had by then become that of 1 April.[30]The reason why we put the case in this provisional language is that an initial issue of some importance arises. As we have recounted in paragraph 10, the application for leave was contested by both respondents. Keene J concluded that the grounds for the application had not arisen until 1 April 1999 and that the four weeks or so which went by between LSL's learning of the decision (on 8 April) and their issuing proceedings had caused no harm to either respondent, so that there was in his view no lack of promptness. Turner J revisited this issue without reference to the decision of Keene J and reached a contrary conclusion. It is Mr Mole's submission, in reliance on the decision of Simon Brown J (as he then was) in R v Swale Borough Council, ex parte Royal Society for the Protection of Birds [1991] PLR 6 (hereafter RSPB ), that Turner J was entirely right to do so. It is Mr Taylor's submission that RSPB was wrongly decided and that Turner J had no power to reopen the issue.[31]In RSPB , as in the present case, the application for leave had been contested before Hodgson J on grounds of delay. In a considered judgment Hodgson J had refuted any lack of promptness, indicating that had he found otherwise he would have refused leave under s.31(6). Simon Brown J on the full hearing concluded that there had been no justiciable public law error; but he went on to deal fully with discretion and delay in a powerfully reasoned passage which loses nothing in cogency for being, strictly speaking, obiter. The law on delay was at the date of his judgment less clear than it has been since the House of Lords' decision in R v Criminal Injuries Compensation Board, ex parte A [1999] 2 AC 330 ; but the latter decision, which concerned the permissibility of reopening an enlargement of time given on the grant of leave, has no direct bearing on the question with which Simon Brown J was concerned in RSPB and which now concerns us.[32]Simon Brown J said, at 21-3:
"We are, let it be remembered, concerned only with cases where leave is being sought within the three-month limit. Outside that period the issue of promptness cannot arise; by definition, leave then can be granted only if the court considers there is good reason to extend it. When leave is sought within the three months it is rare indeed that the court at that stage will even so much as query the matter of promptness. Usually the application for leave will be dealt with on the documents. Even if it is heard in open court, that hearing will almost invariable be ex parte . It is singularly unlikely that detailed evidence going to the question of promptness will have been filed. Generally, therefore, the point as to delay will arise only once leave has been given and the respondents or third parties raise it. Indeed, the main, if not the only, reason why promptness was raised in this very case was because at the leave stage the applicants were seeking an injunction and I adjourned the table application for that to be dealt with inter partes. It was plainly sensible to give the respondents an opportunity also to attempt an early knockout of the challenge on the ground of delay. Not only, therefore is is almost a matter of chance whether promptness is raised at all at the leave stage, and, if so, how fully it is both covered by the evidence and argued, but also it is often a matter of chance whether, assuming leave is given, that is on the basis of a finding of promptness or, alternatively, because good reason is found for extending the period. Is it really to be said that because, unusually, promptness in this particular case was raised and argued fully inter partes and on essentially the same evidence as is now before the court, some form of issue estoppel arises? I think not. It seems to me quite absurd. This case could as well be before a full divisional court as before me. Just imagine its reaction to this proposition. But there are yet more fundamental reasons why a finding of promptness at the leave stage cannot, in my judgment, be decisive of the question of undue delay at the substantive hearing. The section 31(6)(b) power is a quite separate and distinct power to that conferred by the rule. Different language is used: different considerations at that stage arise. It cannot be pre-empted by whatever may have occurred at the leave stage. Although I tend to regard the earlier finding of promptness here as virtually an irrelevance by this later stage, it in any event appears to me possible to reconcile it with a subsequent finding of undue delay. Let me explain. I believe that the question of undue delay is to be approached more, rather than less, objectively than the earlier question of promptness. Perhaps some analogy is to be found in the concept of inordinate delay developed in the authorities governing the striking out of actions for want of prosecution. Inordinate delay means materially longer than the time usually regarded by the profession and courts as acceptable. It falls to be judged objectively. Why should undue delay be judged differently? If one has delayed inordinately, surely one has delayed unduly. Moreover, some support for an objective approach appears to me to be found in a passage in the judgment of Ackner LJ in the Stratford-on-Avon case, a passage clearly thereafter approved by Lloyd LJ in Caswell. Ackner LJ said: Accordingly, even though the court may be satisfied in the light of all the circumstances, including the particular position of the applicant, that there is good reason for that failure, nevertheless the delay, viewed objectively remains "undue delay"
. True, as Mr Cran points out, "that failure" was, on the facts of that case, a failure to act within three months. But Ackner LJ was in fact referring to the court's conclusion "that whenever there is a failure to act promptly or within three months there is 'undue delay'. I add only this upon what may loosely be called the jurisdictional question now raised: it is with some relief that I feel able to reject Mr Cran's argument. How unfortunate it would be if a somewhat hesitant finding of promptness, such as was arrived at in this very case, were decisive of the question of delay for all purposes. Inevitably such a finding would have to be appealed and, indeed, a contingent appeal has been launched in this very case. How inconvenient that would be. It would, of course, be necessary in any event if the respondents wish to try again for a preliminary knockout, but otherwise surely not. Yet failing an appeal, the court's powers at the substantive hearing would, if Mr Cran is right, be wholly pre-empted. The interests of third parties, presumably even if only lately apparent, would have to be ignored, and indeed the court's entire discretion would be removed, at least in respect of delay, for now that that discretion is enshrined in statute the erstwhile common law power is said to be abrogated. Happily, however, in my judgment, none of this is so. I therefore conclude that I have a discretion under section 31(6)(b) which I must now exercise."[33]On Simon Brown J's analysis, it appears, action which is not prompt will always be tainted by undue delay; but undue delay may be found even where the action was prompt. Mr Taylor, contesting this analysis, suggests that if anything it is promptness which is the more rigorous requirement - so that an application which is not promptly made may nevertheless earn an enlargement of time (for instance because the respondent has been obstructive or the applicant has been seeking a sensible resolution without litigation) and by that token escape the stigma of undue delay. It seems to us that the supplementing or supplanting of well-tried common law and equitable doctrines by s.31(6) of the Supreme Court Act 1981 has generated quite enough complications without the need of these. Promptness is simply a function of the factors, ranging from the systemic to the idiosyncratic, which affect the fairness of letting a particular application proceed in a particular situation after a particular lapse of time; and these will ordinarily be the same factors as determine whether there has been undue delay. The formal enlargement of time can in practice be reserved to applications made outside the three-month limit. All of this, we believe, is consistent with Lord Slynn's approach in R v Criminal Injuries Compensation Board, ex parte A (ante, 341) as well as with the conclusion earlier reached in the same case by Simon Brown LJ [1998] QB 659, 675-6, that the application for leave and the substantive hearing have to be treated as two distinct stages. It is consistent too with what this court has recently said in Ex parte Burkett . Beyond this point analysis may well confuse more than it clarifies.[34]The critical question in this case, however, is at what stage or stages the prescribed tests may be applied or - importantly - reapplied. Here the Rules and the Act provide most of the answer. Regardless of whether it involves repetition of arguments on promptness already considered at the leave stage, undue delay is placed by s.31(6)(b) on the agenda at the substantive hearing. On this short ground it seems to us that, notwithstanding Keene J's finding of promptness, the related question of undue delay lay within Turner J's jurisdiction at the substantive hearing. Thus far we respectfully endorse Simon Brown J's conclusion in RSPB . But it does not follow, in our judgment, that the judge at the substantive hearing should proceed as if the issue had never previously arisen in the case, at least where it has been properly argued out between the parties at the leave stage. It is necessary to place beside Simon Brown J's example of a full divisional court being told that it is bound by a single judge's view of promptness the equally undesirable - and today more likely - situation of one judge of the Administrative Court effectively acting as a court of appeal from another, or (as happened here) deciding an issue without reference to a fellow judge's earlier decision inter partes on substantially the same question and upon the same materials. While ultimately it is a matter for the judge hearing the substantive application, we consider that the appropriate course in a situation such as arose both in RSPB and before Turner J is that the respondent should be permitted to recanvass, by way of undue delay, an issue of promptness which has been decided at the leave stage in the applicant's favour only(i) if the judge hearing the initial application has expressly so indicated,(ii) if new and relevant material is introduced on the substantive hearing,(iii) if, exceptionally, the issues as they have developed at the full hearing put a different aspect on the question of promptness, or(iv) if the first judge has plainly overlooked some relevant matter or otherwise reached a decision per incuriam. This is, today, no more than practical case management under the Civil Procedure Rules, in particular CPR 3.1(2)(k), which permits the court to exclude an issue from consideration, but more generally under CPR 1.4(2)(c) and the overriding objective set out in CPR 1.1. It also gives effect to the principle of judicial comity at first instance spelt out by Robert Goff LJ in R v Greater Manchester Coroner, ex parte Tal [1985] QB 67, 81A-C. The second judge, in addition, must have in mind the need to prevent circumvention of CPR 54.13, which provides:
"Neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed."
[35]Applying these principles to the present case, we consider that Turner J ought not to have embarked upon the issue of undue delay. Nothing in the short passage in which he dealt with it indicates any recollection that the issue of promptness had previously been considered on notice by Keene J, much less that any new material was now before him. Yet he concluded, in conflict with Keene J, that because time began running early in March 1999 and LSL then stood by for three critical weeks, undue delay had been established. For reasons which we have given, it is no more to the point that Turner J expressed his finding in terms of promptness (the leave test) than it is that Keene J did not refer in his judgment to s.31(6)(a). For practical purposes, both judges were dealing with the same issue on the same materials.[36]There is now an invidious choice to be made between the two decisions. In our judgment Turner J was correct to identify early March as the point at which time began to run against LSL. It is one thing to hold, as we have held, that LSL would in all probability have found themselves nursing a continuing grievance about the undisclosed agreement dating from February even if they had made their submissions to the planning committee on 1 April. It is another to hold that they were justified in waiting to apply to the court until some four weeks after they knew the planning committee's final decision, when they knew from early March that an adverse basis of calculation had been adopted without consulting them. In our judgment it is on 1 March 1999, when the planning committee adopted the impugned formula in principle that the subject matter of the application first arose, and from shortly after then that LSL knew of it and were in a position to act.[37]But promptness, like undue delay, is not to be gauged simply by locating the earliest practicable opportunity and adding a short time for lawyers to advise and launch proceedings. It is crucially affected by the potential or actual effects of the passage of time on others. This is the reason for the particular pressure on applicants in many planning cases: see Ex parte Burkett (ante) paragraphs 17 to 20. In the present case, however, Williams and Soleco were not waiting on the planning committee's decision: they had taken the calculated risk on 3 March of going ahead with their development in anticipation of it. This fact was noted by Keene J and was central to his decision that, albeit from a later starting date than we would take, LSL had acted promptly. We take the same view, whether the question is regarded as one of promptness in applying for leave or of undue delay in seeking relief. As has been seen, LSL did not stand by during March; and in any event a challenge made, as this one was, in early May rather than, say, late March was going, on the evidence, to make no difference to Williams and Soleco or to LDC - subject in both cases to the issue to which we now turn: the ambit of the challenge. The ambit of the challenge[38]The foregoing finding would have been much more problematical if LSL's case were directed to the quashing and retaking of the entire grant of planning permission. Such a challenge, which would have put Williams at serious planning risk and LDC to serious expense, would have thrown up far sharper issues of prejudice and hence of promptness and undue delay. But Mr Taylor has made it clear throughout that what he seeks to isolate is the contribution formula. For reasons we shall come to, this is today a perfectly feasible approach. It permits the court to get the bad parts out of the curate's egg and to avoid the commonly heard argument as to the potentially far-reaching effects of granting relief. Good administration[39]The question of possible detriment to good administration arises under s.31(6) only if there has been undue delay. Mr Mole, for LDC, has laid understandable stress on this ground for denying relief which is otherwise called for. It is a relatively unexplored ground, if one may judge by its brief appearance in Fordham's encyclopaedic Judicial Review Handbook (2 nd edition; paragraph 26.9.3), no doubt partly for the reasons indicated in Lord Goff's speech in R v Dairy Produce Quota Tribunal, ex parte Caswell [1990] 2 AC 738 , 749-50. Lord Goff was careful to avoid a formulaic approach, limiting himself to the specific effect in that case of a very long delay on the desirability of a regular flow of consistent decisions by the Tribunal in question. But a further reason for the relative infrequency of decisions based on good administration is in our view that it can come into play only(a) where undue delay has occurred, and(b) - in practice - where the consequent hardship or prejudice to others is insufficient by itself to cause relief to be refused. In such a situation it can rarely, if ever, be in the interests of good administration to leave an abuse of public power uncorrected. Indeed Fordham records the decision of May J in R v Mid-Warwickshire Licensing Justices, ex parte Patel [1994] COD 251 that, despite undue delay, the interests of good administration were served not by withholding but by granting relief.[40]In the present case, however, given our conclusion that the application was made with sufficient promptness and without undue delay, neither the statutory issue of good administration nor any analogous issue within the court's discretion arises for determination. Conclusions Relief[41]Where the court decides to make a quashing order, as certiorari is now called, CPR 54.19(2) permits it to "(a) remit the matter to the decision-maker; and (b) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court."[42]In the present case, as should by now be clear, the necessary act of quashing the resolution of 1 April 1999, of which the s.106 agreement formed an integral part, is not designed to undo more of the decision than sanctioned and adopted an amount for Williams' contribution to the road infrastructure costs. LDC is required accordingly to revisit and reopen only as much of its decision-making process as set the formula by which this sum was calculated and as made the consequent calculation. It must do so by a process which it is not for this court to dictate but which must begin with open minds in the district council offices; must afford both LSL and Williams a fair opportunity, furnished with the relevant information, to put forward a method which each considers appropriate; and must conclude with a fair-minded committee decision based on, though not necessarily adopting, advice honestly and objectively arrived at by LDC's officers. There is no reason why this should create any problem for the able administrators whose evidence and correspondence we have read. The problem seems to us to have been that they have felt trapped by the interests of others in a process of which they needed to be in command. The critical task is not to ignore those interests but to deal fairly and openly with them.[43]The appeal will be allowed to the extent that the decision of 1 April 1999(a) to issue a grant of planning permission relating to East Hill Farm, Fradley, upon the completion of a s.106 agreement, and(b) to enter into such an agreement on specified terms, is quashed and remitted to Lichfield District Council for reconsideration and determination in accordance with this judgment, in particular paragraph 42.

order

Background ORDER: Appeal allowed to the extent set out in paragraph 43; costs argument put over for a date to be fixed; written submission to be lodged 7 days before the date (with any response being supplied within 2 days of the hearing) (Order does not form part of approved Judgment)

Cited in 27 later judgments

and 18 more of the most senior