Gavin, R (on the application of) v Wolseley Centers Ltd. [2003] EWHC 1883 (Admin)

Case No CO/2571/2003[2003] EWHC 1883 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 23 June 2003
Strand
London WC2
B E F O R E:
MR JUSTICE ELIAS
Between
THE QUEEN ON THE APPLICATION OF SEAMUS GAVINClaimant-v-
Between
LONDON BOROUGH OF HARINGEYDefendantWOLSELEY CENTERS LIMITEDInterested Party
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR McCRACKEN QC (instructed by Gavins, London N6) appeared for CLAIMANTMR STEPHENSON QC (instructed by Legal Services, London Borough of Haringey, Wood Green 1) appeared for DEFENDANTMR GOATLEY (instructed by BPE, Cheltenham 11) appeared for Interested Party
J U D G M E N T
[1]MR JUSTICE ELIAS: This is an application for permission for judicial review. On 22 September 2000 the defendant granted planning permission to the interested party, Wolseley Centers Limited. The permission was to develop a site at 460 Archway Road in London. The claimant owns property close to the proposed development and claims that he will be adversely affected by it. He issued an application for judicial review on 30 May 2003, a delay of some 32 months. Goldring J ordered that the application should be listed for an oral hearing with both the defendant and the interested party having the right to attend. They have done so. As a consequence I have heard argument from counsel on behalf of the claimant defendant and the interested party, and I am grateful to them for their submissions.[2]The interested party, Wolseley, carry on business supplying primarily the building trade with drainage, plumbing, heating materials and matters of that kind. They also carry out certain retail activities of an ancillary nature. They applied for the planning permission on 4 October 1999, having become owners of the land shortly before then. The form of development proposed was the redevelopment of the existing building merchant's and car sales operation at the site. Those are apparently two operations carried out on distinct areas within the site.[3]Permission was granted on 22 September 2000. The claimant now challenges that decision on a number of grounds. It is not necessary to set them out in detail, since it is properly conceded by Mr Stephenson QC on behalf of the council that they are in any event arguable. In summary the principal grounds are(1) that there was a failure to consider whether an environmental impact statement was required;(2) the council ought to have concluded, had it considered that question, that it was indeed required; and(3) there was a breach of certain notification requirements: in particular Mr McCracken QC (for the claimant) submits that there ought to have been a site notice pinned to the site and that the development should have been published in a newspaper circulated in the locality. As far as the latter is concerned, it is indeed conceded that the council was in breach of its obligations in that, although the development was advertised in a newspaper which circulated throughout much of Haringey, it was not circulated within the immediate locality where the development is taking place. It is also accepted that it is, as I have indicated, at least arguable that an environmental impact statement was required in the circumstances of the case.[4]As is plain, there has been a significant delay in lodging this application. The reason given by the claimant for this delay is that he says that he had no suspicions that there may be a development of this kind until 13 March 2003. At that stage he noticed certain working on the development site and he immediately contacted the defendants' planning department, both by telephone and in writing. On 27 March he received a letter from the defendants stating that there was no planning permission to develop the site. That was false information and that became plain on 7 April 2003, when he was informed that planning permission had in fact been granted. From then until the lodging of the application he was in contact with the defendant planning authority to investigate how the planning procedures had been implemented. He discovered, for example, the fact that although the development had been advertised in the Haringey Independent, that had not been circulated in the area. He took steps to discover the extent to which neighbours and others in the area had been aware of the development. He contacted the developers and he sent protocol letters to the defendants and the developers ahead of the application being lodged.[5]Mr Stephenson, for the council, properly accepts that the claimant did not know that the application for the planning permission had been made until 7 April. However, he says that the local authority records demonstrate that information about this was sent to the claimant's address. Mr McCracken for the claimant submits that there are various features about this case which demonstrate that there is incompetence in the planning authority of the council, and that I should not presume that the records are accurate on this matter.[6]I am not in a position to resolve finally whether they are or not, and it is not necessary, it seems to me, to do so for the purposes of this application. I do accept that the claimant was not aware of the planning permission having been granted. I am satisfied that it was a matter of genuine and real concern to him and that, had he been aware of it, he would not simply have ignored that fact for the period of 30 months. In addition, it does seem to me material in this case that, had the council advertised in the particular locality as it was obliged to do, that may well have alerted the claimant to this development. There is some evidence in the papers before me that other neighbours were equally unaware, and publicity may have generated discussion and a wider consciousness of what was being proposed in the particular development. It is fair to say that certain groups plainly were consulted and did make representations in respect of this development, but not the claimant.[7]The legal approach to matters of this kind is set is out in the judgment of the House of Lords in the Caswell case [1990] 2 AC 738. The leading judgment was given by Lord Goff, with whose judgement Lords Bridge, Griffiths, Ackner and Lowry agreed. I set out a brief passage from that decision:
"The relationship between Ord 53, r 4, and section 31(6) was considered by the Court of Appeal in Reg v Stratford-on-Avon District Council, Ex parte Jackson [1985] 1 WLR 1319 .... with particular reference to the meaning of the expression 'undue delay.' It was there submitted that, where good reason had been held to exist for the failure to act promptly as required by Ord 53, r 4(1), and the time for applying for leave had therefore been extended, the effect of section 31(7) was that in such circumstances there was no power to refuse either leave to apply or substantive relief under section 31(6) on the ground of undue delay, because an extension of time under Order 53, r 4, itself negatives the existence of undue delay. That submission was rejected by the Court of Appeal. Ackner LJ, who delivered the judgment of the court, said, at p 1325: 'This is not an easy point to resolve, but we have concluded that whenever there is a failure to act promptly or within three months there is "undue delay."
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." The court therefore still retains a discretion to refuse to grant leave for the making of the application or the relief sought on the substantive application on the grounds of udue delay 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." With this conclusion, I respectfully agree. First, when section 31(6) and (7) refer to 'an application for judicial review,' those words must be read as referring, where appropriate, to an application for leave to apply for judicial review. Next, as I read rule 4(1), the effect of the rule is to limit the time within which an application for leave to apply for judicial review may be made in accordance with its terms, ie promptly and in any event within three months. The court has however power to grant leave to apply despite the fact that an application is late, if it considers that there is good reason to exercise that power; this it does by extending the period. This, as I understand it, is the reasoning upon which the Court of Apppeal reached its conclusion in Reg v Stratford-on-Avon District Council, Ex parte Jackson. Furthermore, the combined effeect of section 31(7) and of rule 4(1) is that there is undue delay for the purposes of section 31(6) whenever the application for leave to apply is not made promptly and in any event within three months from the relevant date. It follows that, when an application for leave to apply is not made promptly and in any event within three months, the court may refuse leave on the ground of delay unless it considers that there is good reason for extending the period; but, even if it considers that there is such good reason, it may still refuse leave (or, where leave has been granted, substantive relief) if in its opinion the granting of the relief sought would be likely to cause hardship or prejudice (as specified in section 31(6)) or would be detrimental to good administration. I imagine that, on an ex parte application for leave to apply before a single judge, the question most likely to be considered by him, if there has been such delay, is whether there is good reason for extending the period under rule 4(1). Questions of hardship or prejudice, or detriment, under section 31(6) are, I imagine, unlikely to arise on an ex parte application, when the necessary material would in all probability not be available to the judge. Such questions could arise on a contested application for leave to apply, as indeed they did in Reg v Stratford-on-Avon District Council, Ex parte Jackson; but even then, as in that case, it may be thought better to grant leave where there is considered to be good reason to extend the period under rule 4(1), leaving questions arising under section 31(6) to be explored in depth on the hearing of the substantive application. In this way, I believe, sensible effect can be given to these two provisions, without doing violence to the language of either." The relevant provisions are now found in the CPR rather than Order 53, but the basic approach has not changed as a consequence.[8]It seems to me that there are three questions to be posed in accordance with the judgment of Lord Goff in the Caswell case. First, was there undue delay? Secondly, if there was, was there a reasonable explanation for that delay? And thirdly, even if there is such reasonable explanation, ought permission to be refused on the grounds of the prejudice to third parties or the interference with good administration? Of course, as far as this third question is concerned, even if there may be such prejudice or interference, the question also arises as to whether that is a ground for refusing permission to mount a challenge at all, or whether it is best left for consideration at the stage where relief is being considered -- assuming, of course, that the case succeeds on the merits.[9]In this case there is plainly undue delay. As Lord Goff's judgment makes clear, that simply means a delay of more than three months and that has occurred here. Is there then a reasonable explanation for the delay? Mr Goatley, for the third party, submitted that there was not. He has advanced two arguments in particular as to why that was so. First, there is some evidence that certain development of the site took place in August/September 2002. He says that in the circumstances the claimant ought to have been aware that planning permission for some development had or may have occurred. Secondly, he says that there was undue delay between 7 April, when the claimant, even on his own case, was aware that planning permission had been granted, and the end of May when the judicial review application was finally lodged. He submits that in the circumstances it was incumbent on the claimant to have acted with particular expedition, given the lengthy delays that had already occurred up to that point.[10]I reject both these arguments. As to the first, the claimant has explained, in a witness statement before me, why he thought that the works that were being carried out in 2002 did not constitute any development. He thought that the land at that stage was still owned by London Underground and that they were simply coppicing certain trees on the land that was owned, as he thought, by them. Similarly, I do not accept that there was undue delay between the period in April when the claimant discovered that planning permission had been granted and his ultimately lodging the application for judicial review.[11]I do accept that it was necessary for him to act speedily but it is well recognised that in applications of this kind it is important that before complaints are made, the matter must be properly analysed and considered; and there were issues here that had properly to be investigated before a claim could responsibly be lodged. As Mr McCracken points out, the very fact that there had been 30 months delay of itself necessitates a careful consideration of the case before proceedings are taken. And the implications of such proceedings can be very significant for a claimant, particularly one who is an individual litigant. Accordingly, in these circumstances I find that there is a reasonable explanation for the delay; that it substantially stemmed from the fact that the claimant did not know until 7 April that planning permission had been granted and that the steps taken thereafter could not fairly be said to have been dilatory.[12]This leads to the final question, namely whether in the interests of good administration or prejudice to third parties -- in this case of course the only prejudice identified is the prejudice to Wolseley -- those considerations should defeat the claim at this stage. I found this by far the most difficult issue in this case. The developers have actually started the development. I have seen a witness statement from Mr Mason, the development manager of the third party. He recounts that work commenced in early April 2003. Liabilities have been incurred to a contractor, orders have been made of significant materials and there will inevitably be losses incurred if ultimately the planning permission in this case is quashed. There no doubt will be some dispute as to what the precise losses are. Mr Mason submits that in addition to contractors' fees already incurred, Wolseley would have to pay a figure in the region of £650,000 in respect of goods ordered and there would be profits lost which would be in the region of £100,000. He submits that the overall losses could be in excess of £1m. Whether that figure at the end of the day be right or not, I am prepared to accept that significant losses could be incurred by Wolseley if at the end of the day this planning permission were to be quashed. Of course a lot would depend upon what were to take its place, but nonetheless I do recognise real prejudice to the developers, potentially, in this case.[13]Mr Stephenson, for the council, and Mr Goatley, for Wolseley, both rely on this prejudice. Mr Stephenson also emphasises the interests of good administration. As far as that is concerned he says that, irrespective of the nature of the alleged defects in the original planning permission, and quite irrespective of who may be to blame or not to blame for any delays in bringing this matter before the court, nonetheless the fact that is it is now 30 months since the planning permission has been granted and good administration requires finality above all else in matters of this kind. This is a decision which is on a public register. There was discussion. There were many parties who were aware of it and were the subject of consultation, and it is wrong at this stage to permit the matter to be reopened. He, of course, reinforces this by relying upon the adverse consequences to Wolseley which could result if permission were to be granted and the case were to go forward. Mr Goatley likewise relies upon that, and indeed emphasises the very uncertainty that is created as far as Wolseley are concerned if they are left in this period of limbo where their particular status is uncertain as a result of the court case being, as it were, over their heads and yet undecided, which creates for them certain difficulties as to how to conduct themselves in the next few months.[14]Mr McCracken recognises that those features may well defeat his client in the sense that he may fail to obtain the principal relief he seeks, namely the quashing of the planning permission, but he submits that I should not at this stage shut out his client from having his application heard. He advanced a number of reasons for this. Perhaps I can focus just on what seem to me to be some of the more important points that he raised.[15]First, he made the obvious point that his client is potentially significantly affected by the development. He lives opposite, it may affect his light, there may be significantly greater noise and greater traffic, all of which will affect the enjoyment of his property. He ought not to be deprived of at least the opportunity to seek to have this permission set aside in circumstances where his lack of awareness of the existence of the planning permission stemmed at least in part from the council's failure to take proper procedural steps.[16]Secondly, one of the claimant's complaints is the lack of an environmental impact statement. It is of course a matter of public interest that proper consideration should be given by an authority in these circumstances as to whether or not an environmental impact statement is required. If it is, then there is the opportunity for full discussion about the environmental consequences of the proposed development, and for there to be -- and Mr McCracken puts an emphasis on this -- also a fuller discussion of mitigating features which might at least ameliorate the adverse consequences of any development that is finally allowed.[17]Thirdly, Mr McCracken submits that the developer was in a position to check, without any significant difficulty, that the relevant legal requirements had been met. For example, he said they could have checked to see whether a site notice had been put in place, and whether relevant local advertising had taken place as is required by the legislation. He also suggested that they could have obtained a screening opinion from the planning authority, requiring the planning authority to determine whether an environmental impact statement was required or not. Alternatively they could even voluntarily have undertaken their own environmental impact assessment without a formal screening opinion from the council being obtained. Mr McCracken submitted that the failure by the developers to carry out what he described as a due diligence inquiry in this case was a factor which a court would be entitled to take into consideration when deciding whether or not relief should be granted. That submission was strongly opposed by both Mr Stephenson and Mr Goatley. Mr McCracken recognised that a consequence of this would be that whether or not a due diligence inquiry were required would depend upon the resources of the developer and their access to their own legal information and advice. This submission was again, as he recognised, a novel one in the sense that there is no authority directly on the point, but he contended that it was a matter which a court was entitled to take into consideration when determining what relief to grant and, perhaps more significantly, that he ought at least to have the opportunity fully to advance that matter at a substantive hearing when the facts relating to the potential prejudice and any failures that there may have been in the grant of the planning permission would be established.[18]Fourthly and in any event, Mr McCracken submitted that even if the planning permission were not quashed, there could still be some benefit to his client in having the legality of the defendant's conduct assessed by a court. Indeed, he submitted (although I think it is fair to say with somewhat muted enthusiasm) that his client may have a claim in damages against the planning authority for failure to implement the environmental impact statement. I put very little weight on that factor, not least because even if there were such a claim, then it seems to me that would better be conducted by proceedings other than judicial review proceedings.[19]As I have said, I have not found this an easy matter to determine. There will, it seems to me, be an injustice to the claimant if, through no fault of his own and because of a failure by the planning authority properly to advertise, he is prejudiced in not being able to make his representations about the desirability of, and possibly mitigating features relating to, the planning permission. At the same time, there is a potential injustice to the developers, who may incur costs as a result of any planning permission being incurred and who, as I recognise, will in any event be faced with a period of uncertainty which is commercially detrimental to them, even from having the resolution of this matter delayed. Some prejudice will occur even if ultimately no relief is granted.[20]In substance it seems to me I have to try and determine where the lesser injustice is caused. I have decided on the material before me -- and it is consistent, I think, with the observation of Lord Goff in the Caswell case -- that I ought not at this stage to shut out the claimant from the right to make such representations as he wishes about the legality of planning permission. I bear in mind that one of the complaints does relate to the failure to carry out an environmental impact assessment, which does raise wider public concerns than some of the other challenges that have been advanced. I should also indicate that it seems to me, at least from this cursory consideration of the case, that there is going to be considerable difficulty for the claimant establishing in this case, given the steps that have already been taken by the developer, that it is appropriate for the planning permission to be quashed. But I do not think I can properly and safely say that that is inevitably going to be the outcome. Even if I could say that, it seems to me that there are other reasons why the claimant ought to be allowed to have his day in court and to seek to put his case as to why he has a grievance as a result of what he alleges are failures by the defendant authority to comply with their legal obligations.[21]For these reasons, I would grant permission in this case.[22]I have given a rather fuller judgment than I would normally do in the circumstances in recognition of the full arguments that have been advanced before me on this matter. I really ought to apologise to counsel and all the parties that I was not in the event able to say all this on Friday afternoon. I am sorry it has taken a bit longer. It was partly to reflect on the argument, and partly that it just got too late to keep everyone in court.[23]MR McCRACKEN: My Lord, I am very much obliged. Bearing in mind that my client may well not succeed in due course and may find that he loses, I would ask that as he has won at this stage he should have his costs of this hearing in any event. I am very conscious that at the end of the day he may lose and he may have to pay the overall costs of the proceedings, but he ought at any rate to have the costs of the permission hearing because in relation to whether or not he should be allowed to go ahead, the arguments advanced by my learned friends have in the event been unsuccessful.[24]MR JUSTICE ELIAS: He might; but you cannot possibly have your costs of this application. You have to get permission. The judge has said on paper, you have to come to court and make good your claim. These parties have chosen to turn up, they were not obliged to do so, though they have been helpful. You would have had to be here whether they turned up or not, and you would have had to persuade me, whether they had chosen to enter into the fray or not, that it was an appropriate case and no doubt you would have needed all the same material you have in fact advanced before me.[25]MR McCRACKEN: I appreciate that point, but your Lordship will appreciate that we have come here, perhaps rather more of us at a more senior level than might have been the case had ...[26]MR JUSTICE ELIAS: That is the choice that has been taken on your behalf. You never get costs in order to establish a right to permission in the circumstances where -- it is not as if the defendants have come to set it aside.[27]MR McCRACKEN: No. Can I simply, in that case, ask that we have our claimant's costs in the claim. That is not that we get our costs in any event but that if at the end of the day we are successful, we have the costs of today as part of the costs in the claim bearing in mind that the oral hearing is something that came about as a result of the view of the judge of the proper way of proceeding. He did not, in making that decision, do so because he found that we had failed in any duty of disclosure that continues to exist after the new procedures came into force: he simply thought that it would be helpful.[28]MR JUSTICE ELIAS: But this cannot be right, because if you fail at the end of the day, then you are suggesting you should in any event not have to pay the costs of producing what is effectively your case, and they have to respond to that.[29]MR McCRACKEN: I certainly do not at this stage want to prolong my submissions, but I am not suggesting that we should have the costs of preparing the case, but only the costs of the oral hearing on Friday and this morning which we would not have had to have had the judge on the papers felt that we needed to appear here. I am very conscious that, had the decision gone the other way, I would undoubtedly have prayed in aid the practice direction 8.6 which says that defendants do not get their costs of oral hearings.

MR JUSTICE ELIAS: I am sure you would have.

[31]MR McCRACKEN: I would have, and I would have cited the article which I wrote with Mr Jones, drawing attention to the good sense of that practice direction and how it reflects indeed the thinking of Lord Woolf, who said that one of the great merits of the permission process is that a litigant gets a free opinion from the High Court judge, an interesting view of it.

MR JUSTICE ELIAS: I would be very interested to read your article.

[33]MR McCRACKEN: Can I just draw attention to this point, my Lord -- finally, because I am conscious that this is not a matter on which I should address the court at any length at all -- but the practice direction 8.6 says that a defendant will not normally get his costs. It is very clearly an implicit assumption that a claimant may get his costs of a permission hearing. It would be slightly odd if we had a case that failed in front of the judge on paper and we came along to the permission hearing and could win our costs, but in a case where the judge on paper did not say, "No, you have a bad case," but simply said, "I think it would be a good idea for this to be heard in open court", it would be very odd if we were in a worse position.[34]MR JUSTICE ELIAS: I do not think you are right. If you fail on paper, you come to court and you manage to persuade a court that you should have permission, you would not have costs against the defendants because they come to uphold the decision of the judge on paper.[35]MR McCRACKEN: No, no. I accept that -- well, no. I think the point I am making, my Lord, is that if your Lordship turns to the practice direction -- and it may be, if I could, it is page 1371 or it was page 1371 of the 2003 White Book, and it is the practice direction. It is always rather difficult those days to distinguish between the rules and the practice directions, but at page 1371, 8.6:
"Where the defendant or any party does attend a hearing, the court will not generally make an order for costs against the claimant."
The proposition I advance is that it is implicit in that that the court may make an order.[36]MR JUSTICE ELIAS: I understand that, but I am saying I do not think it is implicit in that because actually what happens normally, if you come in order to gain permission in circumstances where it has been refused on paper, is that plainly you have to turn up, you have to argue the case and you have to incur whatever costs are involved in that. You may, at the end of the day, get it back as part of the overall costs in the action if you succeed, but the fact the defendants turn up does not mean that they then have to pay for your being able to come to court to get permission which was refused on paper. That cannot be right.[37]MR McCRACKEN: It would be ungracious of me to prolong this argument in the circumstances today, my Lord, so ....[38]MR JUSTICE ELIAS: I would be inclined to say costs in the case. It seems to me that is the right order I should make.[39]MR McCRACKEN: No, with respect, my Lord, it would be quite wrong for the defendants, if they at the end of the day win, to have their costs of attending and unsuccessfully trying to prevent us having permission. In my submission that would be quite wrong.

MR JUSTICE ELIAS: I accept that.

[41]MR McCRACKEN: It may be that the right order is no order as to costs on this hearing, and it may be that no order for costs on the permission hearing is the right order in those circumstances.

MR JUSTICE ELIAS: Mr Stephenson.

[43]MR STEPHENSON: My Lord, can I just draw your attention to page 1361 under the heading in bold "Costs at the permission stage". Courts have a discretion under the Act toward costs on an application for judicial review:
"Where the claimant is granted permission, the costs will usually be treated as part of the costs of the claim for judicial review and will be dealt with at the substantive hearing of the applicant. If [he] is refused permission, whether there has or has not been a hearing, he will generally have to bear his own costs"
. That seems to be the guidance, my Lord, and I adopt it.[44]MR JUSTICE ELIAS: Yes. It does not quite deal, I think, with Mr McCracken's point -- and I see some force in it -- that I know I have been assisted by you both, but nonetheless you have chosen to come and contend this permission application. You certainly should not have to pay their costs, in my view, as I say, but the costs in the case does leave the possibility that if they were to fail at the end of the day they would have to pay your costs of appearing at this stage in relation to an application in which they succeeded.[45]MR STEPHENSON: My Lord, all I would say about that -- and like Mr McCracken, I do not want to prolong this discussion any longer than necessary -- is that where a claimant brings a case which is 32 months out of time -- and the judge's reaction to it was absolutely spot on, if I can put it that way, and he was entitled to, I think possibly assume, that there would be some prejudice of some kind and therefore there was a necessity for a hearing like this. In this particular case I would respectfully suggest that in the event that Mr McCracken loses on the substantive hearing, he should pay our costs of coming here today. That is all I say about it, my Lord. The alternative, I think, is no order for costs.[46]MR GOATLEY: My Lord, I am not going to, again, prolong matters and it may well be that it is a matter that is only of academic interest to my clients anyway, but I respectfully suggest that with regard to the permission stage, the permission stage is effectively a procedural threshold which is put in there for very good reason; but where, ultimately, the parties then have to go on, if permission is granted, to a substantive hearing. Essentially, at that stage that would be the proper stage for the judge in the case to determine where, if any, costs should lie at the conclusion, having heard submissions at that stage. Ultimately, if a claimant is unsuccessful, the fact that they have had to go through a procedural permission or leave stage may well be a matter that would give rise to submissions of the sort that my learned friend Mr McCracken has made, but nonetheless that does not excuse the defendants from any costs which are associated with that.[47]I bear in mind other circumstances where there are other statutory requirements to obtain leave. I have in mind particularly section 289 of the Town and Country Planning Act, where leave is required in order to challenge an enforcement notice. In those circumstances, even if permission is granted at that stage and it goes on to a substantive hearing, it may be surprising -- and not necessarily inexorable but it may be surprising -- if a claimant in that case who is unsuccessful before the High Court on the final hearing can simply say, "Well, I got leave so therefore everything is ring-fenced up to that stage" and effectively then it deals with matters after that. In truth, I would submit to your Lordship, the appropriate thing is to have it as costs in the case and for suitable submissions to be made at the conclusion of the substantive hearing.[48]MR JUSTICE ELIAS: But if it is costs in the case it would not have that effect, would it? Costs in the case would be determining it now, depending upon the outcome. Costs reserved is what you are proposing.[49]MR GOATLEY: Costs reserved; in which case it may well be that the matter be dealt with .... costs reserved.[50]MR JUSTICE ELIAS: Can I say that the only thing that troubles me a little bit -- I do not think that the claimant should be required to pay your costs in relation to your appearance in court now. I am just wondering to what extent -- you plainly had to do some work in relation to coming to court, but presumably the effect of that, in truth, will be to shorten what would have to be done as far as the substantive hearing is concerned. It is material which you would be invoking at the substantive hearing.[51]MR GOATLEY: In part that is right, before my learned friend rises in that regard, because we did not actually have the benefit of a skeleton argument and had a number of other matters which obviously will need to be canvassed and explored beyond that.[52]MR JUSTICE ELIAS: I appreciate that. I am not saying that --[53]MR GOATLEY: But I take your Lordship's point. But the alternative is -- Just leave aside what terminology is applied to it for the moment and let us examine the position. It is whether or not the costs at the leave stage effectively should either be ring-fenced for the benefit of the claimant, so the claimant does not need to pay anyone's costs of coming to the leave stage, or it is going to be that needs to be assessed in the round at the subsequent stage by having started proceedings, whether if, having ultimately lost proceedings, then the claimant in those circumstances effectively has to pay the costs of the proceedings, however much or to what extent may be assessed to be appropriate? That is, I think, the question of principle before your Lordship. In my respectful submission, that ultimately is a matter to be determined at the end on the basis of the outcome of the proceedings.[54]MR McCRACKEN: My Lord, it seems the appropriate order may be in respect of the additional costs associated with the oral hearing, claimant's costs in the cause, so that all the evidence -- which I readily accept is germane to the substantive hearing -- is a matter in respect of which a claim can be made in due course. That one makes it absolutely clear it is this oral hearing in respect of which your Lordship is making the order. My respectful submission would be the claimant's costs in the cause. That is not our costs in any event: if we lose, we do not get them, we only get them as part of the costs in the claim if we are successful at the end of the day. That is just to protect us.

MR JUSTICE ELIAS: I am not sure that follows.

[56]MR GOATLEY: Would an appropriate order be ....[57]MR JUSTICE ELIAS: Costs in the case, so that no order for costs in relation to the -- I am not sure how we put this, but basically to relation to actually appearing to argue the case. So that in so far as there are costs incurred independently of the oral hearing itself .... I think it is getting close to what you said.[58]MR McCRACKEN: If your Lordship feels that even if we win we should not have our costs of appearing at the oral hearing -[59]MR JUSTICE ELIAS: I do not think you should. Let me think. No. I see: you say you have to come here anyway to go through the process and if you win you should be entitled at least to your costs.[60]MR McCRACKEN: Yes.

MR JUSTICE ELIAS: But that would be secured by costs in the case, would it not?

[62]MR McCRACKEN: But that would then mean they could have our costs. The old practice used to be -- the practice still is, as I understand -- if one feels that in respect of a particular stage one party should get their costs if ultimately they are successful, but that the other party should not, even if they win, then it is x's costs in the cause, or in the claim, and therefore if your Lordship were to order, in respect of the additional costs associated with the oral hearing -- that is, brief fees and attendance fees, if they are reasonable -- it should be claimant's costs in the claim. That would, I think, encompass most of what your Lordship has been indicating as a provisional view.[63]MR JUSTICE ELIAS: I think that is probably right, is it not? That would mean that in the normal way if they were to bring proceedings for judicial review, and they were to succeed, they would be able to get the costs of the permission application. So it is securing that. At the same time, as I have indicated, I do not think it would be right that you should get your costs of appearing here, given that they have got permission. But plainly you should get other costs which may have been incurred in relation to this hearing, which will be used in relation to the full hearing, because you would have had to bear them in any event.[64]MR STEPHENSON: The only thing I say about that, my Lord, is that your Lordship has been kind enough to indicate that our appearances were helpful. Where you have a case like this, with such enormous delay, then I would hope that in the event that the claimant is unsuccessful in the end, that we would be entitled to our costs of appearing here today. But if your Lordship is against me on that then the order your Lordship indicates is the correct order, if I may say so.

MR JUSTICE ELIAS: I am afraid I am against you on that.

[66]MR STEPHENSON: The only thing I say in addition, my Lord, is that in view of that would your Lordship indicate that those costs, whatever they are, are to be assessed in due course, rather than assessed now?[67]MR JUSTICE ELIAS: Oh yes, yes, yes. So it is "Claimant's costs in the case in relation to" .... and then it is a matter of formulation.[68]MR McCRACKEN:
"Additional costs associated with the oral permission hearin .... "

MR JUSTICE ELIAS: Yes.

[70]MR McCRACKEN:
"Wholly attributable to the oral permission hearing."
[71]MR JUSTICE ELIAS: Yes, thanks very much. That sounds very helpful.[72]MR McCRACKEN: My Lord, if your Lordship is interested in the article, I have a copy of it here.

MR JUSTICE ELIAS: Thank you very much indeed.

[74]MR McCRACKEN: I wonder why but it is there for your Lordship. (handed)

MR JUSTICE ELIAS: Can I thank you all very much. (The court adjourned)

[76]MR McCRACKEN: My Lord, can I apologise to everybody for having brought people back to court after they were probably, I suspect, ready to go and to make those arrangements. It occurred to me, just as we were leaving court, that this is a case where probably it is in the interests both of my client and of Mr Goatley's clients to have expedition.

MR JUSTICE ELIAS: I confess I meant to raise this myself.

[78]MR McCRACKEN: Partly I had anticipated that Mr Goatley would be asking for expedition if permission were granted, but I think it escaped all our minds. It does seem to be a case where it is sensible to order expedition. I appreciate that that does not always mean a date next week, as one ideally would like, but nonetheless I would suggest that expedition is appropriate. If it transpired that there is no open date in Trinity sittings, if it could be certified as fit for vacation business.[79]MR STEPHENSON: My Lord, on behalf of the authority, we have no interest in whether it is expedited, for obvious reasons, but we have the practical problem, that is this. There were two officers dealing with the application. One was man called (?) Mr Laborie who has now left the authority. He is contactable but it will take time to see him and arrange for statements and such-like to be taken from him; and for him indeed to review the file and come to whatever memory he has of it. That is the first point. The second point, however, is that although he was the main officer in the case it appears that he was not the officer who actually drafted the report and actually did the work. He was the guiding officer in the case and the actual work was done by a man who has gone to New Zealand, and at the moment, at this point in time, we have no idea of how to get in touch with him.[80]MR JUSTICE ELIAS: I am not sure at the end of the day his evidence will be that relevant, will it? If it is going to be more on the report -- the documents.[81]MR STEPHENSON: It may do, my Lord, but it would be interesting to know what he thought of the screening opinion, for example, on the EIS, which is probably the most important point. I have to say that there is no indication on the file that that was done -- that consideration was given to it -- but who knows?[82]MR JUSTICE ELIAS: I understand. You will need at least to find out what --[83]MR STEPHENSON: So unless there is any good reason for expedition put forward, we would say that we do want the normal time to actually trace this man, if we can, and get something from him. Otherwise there may be an injustice done.

MR JUSTICE ELIAS: Mr Goatley?

[85]MR STEPHENSON: I am sorry, Mr Goatley. There is one other thing, my Lord, and that is this. As at the moment the planning authority do consider that the way forwards on this, which may avoid considerable legal expenditures over and above what we have incurred now, is for the developer to put in another application in similar terms which might be determined separately, with EIS and proper notification and all the rest of it. That would not necessarily affect the outcome of the current case but it would be a practical solution which, as I understand it, the Administrative Court favours in most cases. I know not whether my learned friend Mr Goatley's clients would be favourably disposed towards that but it is something that we may be inviting them to do. It would mean that it would in practical terms see the end of this application, with no further expense or costs. It would mean that Mr Gavin, and anyone else who wanted to do so, could put forward whatever representations they wish so that everybody is satisfied, hopefully, at the end of the day, with what they have been able to do. That is what we shall be inviting, my Lord.[86]MR JUSTICE ELIAS: That may be a desirable outcome, but plainly that is going to be for Mr Goatley's clients.[87]MR STEPHENSON: It is, and I would be interested to see what Mr Goatley says about that. But if that happened, my Lord, if the matter was expedited and then an application comes in, it may be the court would not be favourably disposed to move the expedited hearing. Whereas if it is dealt with in the normal way, we could apply and explain what is going on and get the matter stood out until the result of that. That is all I say, my Lord.[88]MR GOATLEY: My Lord, I am afraid my learned friend certainly cannot rule out one option that would be available in order to deal with providing a collateral route for resolving this issue. So far as my client is concerned it would be to submit a duplicate application, and that is certainly a matter which is going to receive anxious consideration following the conclusion of today's business. I hear what my learned friend says with regard to the consequences of trying to deal with that, and it would not be to stand out what would be an expedited case where the court has been asked to bring forward, as a matter of considerable urgency, the hearing of a matter, perhaps to the detriment of other cases that may also have competing claims for expedition. It seems to me there is some force and some merit in that point, if that was to be taken. I cannot as I stand here now say that there will definitely be a duplicate application submitted; that is certainly a matter which is going to be immediately and carefully examined.

MR JUSTICE ELIAS: How long do you all think this case would take?

[90]MR GOATLEY: There was a very brief discussion. It just seems to me that given the period of time we dealt with in respect of Friday and today, one has to look at, I would have thought, a day and half. Obviously some issues will have been rehearsed. They will no doubt appear in skeleton form, together with a transcript, effectively of what events occurred on Friday and today. So I hope there will not necessarily be a need for profound reiteration, albeit that there is going to be a need for some emphasis of points that have been explored this time, particularly so far as I am concerned, going into detriment and prejudice because the substance of those points is going to remain the same, both for the substantive hearing as it did at this hearing.

MR JUSTICE ELIAS: I have to say I thought it would take two days, or possibly into a third.

[92]MR GOATLEY: Your Lordship may actually have a better handle on that, perhaps, than the period of brief time that we have given to thinking of that. Clearly it would be undesirable --[93]MR JUSTICE ELIAS: Listing too short a time. I can certainly say this, that I have caused some enquiries to be made and I think, if it is two or thee days -- I think one and a half is being pretty optimistic -- we cannot do anything before September, I am told. We could fix it in the week of 16 September. That might meet all the requirements. It would give time for the authority to take whatever steps it needs to take. It is not as soon as one would like, but it is principally your clients, it seems to me, who have to make a decision on this, and I am sure the claimant would prefer rather than not and no doubt that is in everyone's interests finally. But I take on board Mr Stephenson's point about wanting to have an opportunity at least for a resubmission if that is what you decide to do; not fixing it too soon so you might be forced into litigation that actually, at the end of the day, is not necessary or desirable.[94]MR STEPHENSON: I would be content, my Lord, to meet the point I made about the expedition, if your Lordship would say there should be expedition -- for September, for example -- but with a note in your Lordship's notes that if in practical terms we might avoid it then the fact it has been expedited should not stand in the way of an application to stand out. That would deal with that point. What I was afraid of was that we would get short shrift from the judge who saw it had been expedited.[95]The only thing I say about the 16 September date is that I shall certainly be on holiday at that time but that is not a reason for ....[96]MR McCRACKEN: My Lord, I wonder if I could make two points. First of all, so far as reconsideration is concerned, can I just invite your Lordship to look for a moment at the observations of the court of Carlton v Conway. That was a decision of Pill LJ, Walker LJ, as he then was, and Sir Martin Nourse. At paragraphs 27 and 28, Pill LJ, with the agreement of the other two, commented on the undesirability of reconsiderations being tainted by the possible motivation of seeking to avoid unwelcome outcomes in judicial reviews. The upshot was -- I have highlighted the key passage in 27 and 28 -- at 28 Pill LJ says:
"In my judgment an appellant who has established what this appellant has established is entitled to a fresh consideration by a committee which is not burdened by the possibility of the extraneous factors to which I have referred."
Then interestingly, he actually went on to say:
"Whilst in my view the appellant was advised to have nothing to do with the proceedings which the council proposed to follow on 6 October."
I express no view as to what advice my client might receive in this case or what decision he may take in respect of the reconsideration, but I simply invite your Lordship to note that it is by no means clear that redetermination without a prior decision on the application to quash would be a satisfactory outcome in the light of the views expressed by the court of appeal in Carlton v Conway.

MR JUSTICE ELIAS: I think may it may depend on the circumstances.

[98]MR McCRACKEN: I readily accept that, my Lord. I am simply, as it were, publicly firing a warning shot across the bows of those who think that you get round past problems by saying but in any event we ....[99]MR JUSTICE ELIAS: You do not necessarily; but plainly that same observation could apply in circumstances where a developer has already done months of work on the site, it has to be said. It is not meaning that they are not doing their honest best, but it is just that one may be influenced by these factors subliminally whether one recognises it or not.[100]MR McCRACKEN: I accept that. I simply felt it was right in the light of the suggestion to draw attention to that fact. If the matter would not be heard until 16 September -- and I am bound to say it is the least one and a half days and therefore generally prudent to allow two days, not least because in theory at any rate one should be allowing time for the judge to deliver his judgment, which must be much more sensible from everyone's point of view -- if it would not be heard until 16 September --[101]MR JUSTICE ELIAS: Possibly the week before, I have to say, but if that makes any difference, I do not know.[102]MR McCRACKEN: But I shall be away during the long vacation, so it might be more sensible to fix it for the first day of Michaelmas sittings. That would mean that both Mr Stephenson, I think, and I could be there.[103]MR JUSTICE ELIAS: I cannot give an undertaking that it will be the first day of the Michaelmas sittings. I can say that I would suggest expedition and ask the authorities to put it in as close to the beginning of the Michaelmas sitting as is possible.[104]MR McCRACKEN: I am very much obliged.

MR JUSTICE ELIAS: Is that all right for all of you?

[106]MR STEPHENSON: I am grateful, my Lord, yes.

MR JUSTICE ELIAS: Thank you all.

Cited in 1 later judgment