Whittall v Hampshire Police [2015] EWCA Civ 1229

Case No C1/2014/1739[2015] EWCA Civ 1229IN THE COURT OF APPEALCIVIL DIVISIONON APPEAL FROM THE HIGH COURT(MR JUSTICE OUSELEY)Venue Royal Courts of JusticeStrandLondon, WC2A 2LLDate Tuesday, 6 October 2015B E F O R E:LORD JUSTICE LLOYD JONESWHITTALLApplicant-v-CHIEF CONSTABLE OF HAMPSHIRE POLICERespondentComputer aided transcript of the stenograph notes of WordWave International Ltdtrading as DTI8th Floor, 165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)The Applicant acted in personInformation not supplied about the Respondent on the recordingJ U D G M E N T
Between
WhittallAppellantHampshire PoliceRespondent

LORD JUSTICE LLOYD JONES:

[1]This is an application for permission to appeal against the order of Ouseley J made on 22 May 2015 refusing permission to bring proceedings for judicial review.[2]The claimant, Mr Whittall, appears before me today in person with the assistance of the PSU representative, for which I am very grateful and I am sure Mr Whittall is very grateful to the PSU for their assistance today. Mr Whittall has made his submissions briefly and efficiently.[3]The claimant sought judicial review to challenge the decision of the Chief Constable of the Hampshire Police in relation to his response to complaints of fraud made by the claimant against his neighbours. The underlying dispute is a property dispute in relation to the claimant's holiday home.[4]The claimant had complained to the police following allegations of fraud and illegal activity on the part of his neighbours, Mr and Mrs Crane. The neighbours were said to have made false representations to the Local Authority, the New Forest District Council, including in a planning application in which the neighbours were said to have fraudulently claimed to own part of Mr Whittall's land. The claimant's case is that the neighbours subsequently removed the boundary fence and built eaves which extended over his land and inserted footings and drains on his property.[5]Ouseley J in his careful and thorough judgment accepted that a drainage connection had been put in which was illegal because the water authority had not authorised it, and that the building control plan which had been submitted by Mr and Mrs Crane showed them owning a strip of land next to the boundary fence which in fact belonged to Mr Whittall.[6]To the extent that these claims are civil disputes, I understand there has been some progress in the attempted resolution with Mr and Mrs Crane agreeing there has been some degree of trespass. The planning permission which was granted was subsequently revoked.[7]The police briefly considered the matter following the claimant's complaint. There was an attempt to interview the claimant but they did not in fact speak with him. They spoke to the Local Planning Authority. They decided not to pursue an investigation any further. The claimant was unhappy with that and made complaints including to the Hampshire Constabulary's Professional Standards Department with an inspector and then an independent review on this.[8]On 28 May 2013, the police wrote a letter reaffirming the decision and giving three reasons why they would not prosecute the matter: First, this was a neighbour dispute which amounted to a difference of opinion. Secondly, the District Council did not share the claimant's concern about the fraud. Thirdly, even if the neighbour acted fraudulently the District Council would be the prosecuting authority.[9]It was that police letter which was the decision letter for the purposes of judicial application. In a letter from Mr Whittall's solicitor dated 17 December 2012, the complaint made by Mr Whittall is set out in great detail and with great clarity.[10]In particular, that letter alleges that the plan of 18 August 2011 which was submitted with the planning application was misleading, because it did not show that work would be carried out on Mr Whittall's land.[11]Secondly, the plan produced in November 2011, submitted to the Local Authority in November 2011, which has been referred "Plan F" misrepresented the position of a boundary.[12]An application was made for permission to apply for judicial review. That was refused on the papers by Wyn Williams J who considered that there was nothing irrational or unreasonable of the decision of the Local Authority not to pursue the matter and to leave the matter to the Local Authority. Wyn Williams J also considered that there was nothing unfair in the way that the matter had been handled subsequently.[13]The application was renewed before Ouseley J who also refused permission. I will refer in a moment in a little more detail to the reasons that he gave. Permission to appeal to this court was refused by McCombe LJ on the papers and the application is now renewed before me today.[14]The police response in that letter of 28 May 2013 was essentially that first this was clearly a neighbour dispute, therefore there was a difference of opinion between Mr Whittall and Mr and Mrs Crane.[15]Secondly, that the District Council did not appear to share Mr Whittall's concern.[16]Thirdly, in any event, even if it did amount to fraud, the New Forest District Council as the planning body would be the prosecuting agency in respect of any criminal matters. The letter concluded in the following passage:
"In my view, having considered appellants, I do not think this is a matter for the police on the basis that this is a matter that should be prosecuted by the Planning Authority. The Planning Authority do not share your client's concerns and as such the evidence supporting a criminal complaint appears to be insufficient. I would suggest that your client take matters up with the District Council."
[17]That was signed by Mr Roger Trencher, the solicitor to the Hampshire Constabulary. Ouseley J considered that as the decision under challenge was contained in the letter of 28 May 2013, and as the proceedings had been commenced on 31 July 2013, the application was in time.[18]Furthermore, he considered that the the availability of the complaints route was not a sufficient answer. Moreover, the judge was clear, and I agree with him on this, that this was not a neighbour dispute about where the boundary actually lies. There was no dispute about that. This was not a case where there was going to have to be an investigation confused by debate about where the boundary was.[19]However, Ouseley J did accept the submission for the Chief Constable that this was essentially a planning prosecution matter for the Local Planning Authority because under section 65 of the Town and Country Planning Act 1990, it is a summary offence to seek planning permission for the benefit of a certificate knowing it to be false or reckless as to whether it is true or not. In his view, the fraud allegation hinged in its simplest form on an allegation that the section 65 certificates were indeed a fraud.[20]So far as the building control plan error was concerned, that is the "Plan F" of November 2011, it was not in the judge's view as obvious a fraud as Mr Whittall thought, because it was a straightforward misrepresentation which could be checked on the ground. However, in the judge's view, this was a essentially a matter for them. He considered the police were entitled to recognise that the applications with the certificates were not necessarily important. The claim here is that the Cranes knew when they put in the inaccurate certificates that they were going to build differently from the way shown on the plan.

The judge said:

"The fact that later they did construct the building in a different fashion was a poor basis for showing that at the time that the certificate went in that they were laying the ground fraudulently for a permission that they were not going to implement properly."
[22]In his view, the police would be dependent on the evidence of the Planning Authority and if they said they did not consider it a fraud, the case would collapse.[23]The crucial point in the judge's view was that it was not irrational for the police to have appraised matters on the basis that if any prosecutions were brought they should be brought by the Planning Authority under section 65.[24]Before me today Mr Whittall has advanced a number of grounds of appeal. He says, first, that Ouseley J erred in finding that the police letter was rational. He submits that the Planning Authority was unlikely to prosecute the matter and was subject to a conflict of interests.[25]Secondly, he submits that Ouseley J failed to take into account relevant factors, in particular the principles in R (on the application of) Bryant & Ors v The Commissioner of Police of the Metropolis [2011] EWHC 1314 (Admin), a decision of Foskett J on an application for permission to apply for judicial review in cases of interception on telephone communications; that there was statutory obligation on the police to report and investigate crimes.[26]Thirdly, it is said that Ouseley J made errors on the facts in that he should have found that the police did not carry out an investigation, that they did not sufficiently attempt to interview the claimant and that there were multiple misrepresentations and objections, not just what was contained in the certificates.[27]Fourthly, it is said that Ouseley J made errors of law and that he should have found that the police do not have a discretion as to what crimes they record and investigate. Their discretion is only to what crimes they refer for prosecution, the correct test put forward was not considered.[28]Largely for the reasons set out by the defence in the local authority's acknowledgment of service, I consider that the decision not to investigate the matter further was lawful. It cannot arguably be said to irrational. Here, contrary to the submissions of the claimant, the allegations were recorded with an occurrence number 4413 00 18614.[29]Contrary to the submissions of Mr Whittall, an investigation was not required. While the claimant rightly relies on Bryant, that decision does not lead to the conclusion that the conduct of the police in this case was irrational. Bryant was, I note, simply a ruling by Foskett J on an application for permission to apply for judicial review. He was at pains to emphasise that he was doing no more than saying in the particular circumstances of that case the point was arguable and should be investigated further.[30]However, Bryant is to my mind clearly distinguishable. That case was concerned with a failure to investigate telephone tapping, which if committed were of serious crimes of considerable public importance.[31]Further, the police here did some preliminary investigation and did consider the complaint. PC Chapman considered the matter and correspondence was recorded. The matter was also reviewed by a sergeant and her inspector to ratify her decision making process.[32]Following a complaint by the claimant, the advice of a solicitor was sought who advised that he, too, felt that this was not a matter for the police. The evidence does show therefore to my mind that there was proper consideration of the complaint, including the possibility of prosecution by the Local Authority and the availability of civil remedies.[33]Therefore, in my view, it was not irrational for the police to decide not to pursue the matter, relying amongst other things on the fact that the District Council did have the ability to bring a prosecution under Section 65 of the Town and Country Planning Act 1990.[34]I have considerable sympathy for Mr Whittall in relation to what he has had to endure as a result of the conduct of his neighbours. However, this appeal in my view has no real prospect of success and, indeed, that there are no arguable grounds for judicial review here. Accordingly, the permission to appeal the review is refused.