Carroll, R (on the application of) v Luken Beck Partnership Ltd & Anor [2008] EWHC 104 (Admin)

Case No CO/5708/2007

[2007] EWHC 104 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Monday, 14th January 2008

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE COLLINS

Between

THE QUEEN ON THE APPLICATION OF TIMOTHY CARROLLClaimant

Between

SOUTH SOMERSET DISTRICT COUNCILDefendant

LUKEN BECK PARTNERSHIP LTDInterested Party

HOPKINS DEVELOPMENTS LTDInterested Party

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Mr Stephen Whale (instructed by South Somerset District Council) appeared for Claimant

Mr Peter Wadsley (instructed by Messrs Battens Solicitors, Yeovil) appeared for 2nd Interested Party

J U D G M E N T

[1]MR JUSTICE COLLINS: This is an slightly unusual claim for judicial review, seeking to quash a grant of planning permission made by the South Somerset District Council. The claimant is the leader of the council and the reason why he is bringing these proceedings is because it is asserted that the permission which was granted was not lawful inasmuch as it resulted from a mistake made by the relevant officer who omitted to follow the resolution which had been made by the Committee in granting permission for the development in question. The development itself is a substantial residential development on land on the outskirts of Wincanton. It is on a Greenfield Site and the plans which are material make it plain that it is a development which is not in accordance with the material plans. Accordingly, it had to be referred to the Secretary of State for her to decide whether a call-in was needed.

[2]Let me expand a little on the circumstances, to put the claim into context. This particular site was one which had attracted a number of applications for planning permission and one had in the past been granted, but it was for a much smaller development than that with which this claim is concerned. The application in question was lodged in, I think, March 2006 and it followed refusals of previous applications made by the same applicant and there were variations in what was put forward which, it was hoped, would persuade the Council that permission should be granted. The Council's internal constitution sets out the circumstances in which applications have to be considered by committees or can be decided by individual officers. The relevant procedure is set out in Section 6, which is headed "Schedule of Functions Delegated to Officers" and paragraph 5 of that states the following:

"The functions shown in this schedule are specific delegated powers. Officers shall also undertake all the operational duties within the remit of their team or service and all necessary powers to do this are therefore deemed to be delegated to the relevant Corporate Director or Head of Service who has responsibility for the discharge of the function. Officers shall exercise their delegated powers subject to statutory limitations, duties and responsibilities and in compliance with Council policies, approved budget limitations, the constitution and financial procedure rules."

There are then a number of provisions which deal with specific delegations and for our purposes the one in question is number 150, which provides, so far as material:

"The determination of all applications for planning permission ... is delegated to the Head of Development & Building Control except in the following cases:- ... (b) The Head of Development & Building Control in consultation with the relevant Area Chairman, considers that, due to the nature of the application, the committee should consider it (A level 3 application)."

[3]This application was one which was contentious and it was decided, entirely unsurprisingly, that it should be treated as a level 3 application and therefore should be put to the relevant committee. That is what was done. There is a further provision which is material and that is the one numbered 166, which reads: "The making and amendment/variation of Section 106 Agreements, agreeing consents to the release of land from such agreements and the making of Revocation and Discontinuance Orders (subject to there being no compensation payable in respect of such Orders)..." are delegated to the Head of Development & Building Control.

[4]Consideration of this application was put to the relevant committee. In August there was a decision that it should be considered by the Committee with a recommendation that it should be refused. The final and, so far as this case is concerned, material consideration was given on 19th September 2006 when the Council's Regulation Committee resolved that planning permission should be granted subject to inter alia an agreement under section 106 of the Town and Country Planning Act 1990.

[5]The precise terms of the resolution in question are material. The resolution was as follows:

"That planning permission be granted subject to: (1) The application be referred to the Secretary of State under the provisions of the Greenfield Directive. (2) Providing no objections are raised by the Secretary of State the application be delegated to the Head of Development and Building Control to grant permission subject to the applicant entering into a Section 106 agreement to cover the following matters: • phasing of development (two phases) • off-site highway works and matters raised in the Highway Officer's response • affordable housing to provide 38 dwellings • education contributions • open space and landscape management plan (3) The permission be subject to the conditions set out in the report plus additional conditions relating to: • the scheme to be carried out in accordance with the amended plans received on the 25th August 2006 • no burning of rubbish on the site; • no open storage on the site; • an archaeological work programme; • This application to be treated as an alternative to that already approved - only one approved development to be carried out on the site. Plus an additional informative relating to the provision of sufficient storage for wheelie bins."

[6]The matter was referred to the Secretary of State in accordance with paragraph 1 of the resolution and in due course the Secretary of State replied that she did not require that the matter be called in and that it could be dealt with by the Council. It is then that the mistake occurred. The officer of the Council who was concerned had been on holiday at the material time and, on her return, was faced with a considerable number of emails (which seem to be the plague of modern administration since people are rather keen on sending emails at the drop of a hat) and she discovered on her return the good news that the Secretary of State had not called the matter in. Accordingly, she notified the officer, that is the Head of Development and Building Control, who was responsible for issuing the planning permission, that it could be issued. Unfortunately she had overlooked the requirement for the section 106 agreement and nothing at that stage had been done to follow that up. That is hardly surprising since, until it was known whether or not the Secretary of State was going to call the matter in, there was no point in pursuing anything further in relation to the permission.

[7]Mr Gale, the relevant officer, was himself not aware of the problem which was created by the indication from the relevant officer that the planning permission should be granted and so he gave the necessary permission. That grant did not say anything about the requirement for a section 106 agreement. Accordingly, the applicants obtained a planning permission which was in its terms absolute; it contained a number of conditions but it did not contain the requirements for the section 106 agreement.

[8]The applicants were not in fact the owners of the land. The owners were a firm called Hopkins Developments Limited, who have been described as the second interested party. Hopkins, as I shall call them, were the then owners of the land in question. They were, as I understand it, a relatively small company whose interests lay in the development of sites but who would not on the whole themselves carry out developments but would sell to a substantial developer who would then carry out the development. In this case, the substantial developer in whom they were interested was Wimpey but, of course, at the time that the permission was granted and, as we shall see, at the time that this claim was lodged, Hopkins were the owners of the land.

[9]The mistake was not immediately appreciated. There was a delay because the decision was made that it was sensible to wait for a period of three months because that was the period during which a claim for judicial review, if one were to be made, should be expected to arrive. It is well known that judicial review, according to the rules, has to be brought promptly and in any event within three months. Of course, the court has power in appropriate cases to extend time.

[10]The formal permission was granted on 21st November 2006 and so the three months expired at the end of February. At the end of March, the authority wrote a letter to the applicants for planning permission, stating that the mistake had been made. It was only then that they appreciated what had occurred. What that letter said, dated 30th March was, so far as material, this: "I write to advise you of a fundamental mistake affecting the legal validity of the decision notice issued by the Council dated the 21st November 2006 and purporting to grant planning permission for the above development. Unfortunately, this mistake has only just come to my attention today. The letter then referred to an attached copy of the committee resolution and pointed out that no section 106 planning obligation was entered before the decision notice of 21st November 2006 had been issued.

[11]On 4th May, the Council solicitor wrote to the applicants and copied his letter to the representative who was acting on behalf of Hopkins, pointing out the mistake and suggesting that the sensible course was for the applicant to accept that the purported planning permission was to no effect, that the court should grant a declaration to that effect, the council could then issue proceedings and the relevant parties could promptly enter into a consent order. Such a course could minimise costs and the applicant and the Council could then get on with the sensible business of entering into the section 106 agreement in accordance with the Regulation Committee's resolution. Unfortunately that did not occur; I say unfortunately for reasons that will become clear in the course of this judgment.

[12]The initial response from the representative of Hopkins was to say this in an email on 4th April 2007:

"I do not think that there is any issue to be resolved. The permission is valid. As such my client has and will continue to incur costs related to the issuing of the permission. Your letter does not alter the valid permission granted but it does have the potential to threaten the current marketing exercise, the pending sale of the land, the work being carried out to comply with conditions and the increased value of an asset of my client. Such a threat is not acceptable to my client but there is willingness to ensure any concerns you have are addressed and answered."

There was further correspondence, as I indicated, and a later email, again from the representative, Mr Sneddon, stated:

"I do not see why any party would want to enter into a legal agreement following the grant of permission but will of course be more than happy to ensure that any concerns you have are addressed and will respond on behalf of the landowner if required."

That, on the face of it, was taking a point that the permission was absolute, there was no question of the need for a section 106 agreement and the interested party, Hopkins, were entitled to take advantage of the permission as it had been granted.

[13]It is fair to say that, when the matter got into the hands of the solicitors who act on behalf of Hopkins, they adopted a less harsh approach. They stated that it might well be sensible for the parties, the Council and Hopkins, to discuss the matter, and there was an indication that they were not in the least unwilling to consider appropriate section 106 obligations. Accordingly, it was suggested that it was not necessary to seek judicial review to have the decision quashed because the Council would be able to put forward what it wanted and only if negotiation failed and Hopkins were acting unreasonably should it be necessary for the matter to go to court. However, the Council took the view that, in the absence of a specific consent, it was necessary to seek judicial review of the decision and to have it quashed and then the matter could continue as it should have done had the officer dealt with the decision of the Committee as it ought to have been dealt with. So it was that this claim was lodged at the beginning of July 2007.

[14]Hopkins had been negotiating but, although they remained the relevant owners at the time the judicial review was instituted, they have since sold to Wimpey. It is not necessary for me to go into the precise figures but the amount in question is a substantial sum, approximately £14 million, and they have entered into an agreement with Wimpey whereby they are able to receive a extra £1.5 million or thereabouts if this claim is resisted successfully; that is to say, if the planning permission in its absolute terms remains in being. Wimpey were present at a meeting which was held with the Council at the end of June and, although I have not seen anything about the exact terms of the discussion because it was a without prejudice discussion, nonetheless I am aware, because it is part of the evidence, that Wimpey did not dissent from the offer made by Hopkins to enter into section 106 obligations.

[15]However, once Hopkins had sold to Wimpey, as they did, the question arose as to whether they remained the interested party. This was a point that was taken when the matter was before Sir George Newman, who eventually granted permission. The relevant rule is CPR 54. That requires that anyone who appears to be a interested party must be served with a claim for judicial review and has the right to enter an acknowledgement of service and to take part in the proceedings. When the claim was lodged, those served as interested parties were the recipients of the planning permission and Hopkins as owners of the land. Clearly both were then interested parties because interested party is defined in 54.1(2)(f) as meaning "any person (other than the claimant and defendant) who is directly affected by the claim". It was therefore asserted by the claimant that once Hopkins had sold they were no longer directly affected by the claim. Thus, although they had been an interested party when the claim was instituted, they were no longer such, and it was suggested that they therefore had no right to make any submissions or to appear at the hearing before me.

[16]The argument as to whether they are directly affected is no doubt an interesting one and it may be that it could be said that once they had sold, albeit they had a financial interest in the sense that they might receive some more money if the claim was defeated and they had perhaps stood to lose some money as a result of the existence of the claim, nonetheless that was, it was suggested, a indirect rather than a direct effect of the questionable legality of the planning permission and there was authority in support of that view. There was also the point made by Mr Wadsley that the rules do not suggest that anyone who is an interested party at the time proceedings are launched, ceases to be able to appear as such even though circumstances may change between the time when the proceedings are instituted and the date of the hearing. Effectively, he submits once an interested party always a interested party for these purposes. Again, it is a question which may in another case have to be determined. The reason why I say it is not necessary to go into these matters is because of the existence of rule 54.17. This provides:

"(1) Any person may apply for permission [to]- ... (b) make representations at the hearing of the judicial review. (2) An application under paragraph (1) should be made promptly."

[17]It seems to me that, whether or not it can be described as a direct effect, it is plain that Hopkins are affected by the decision and clearly have a interest to argue that the permission was valid. In those circumstances, I have no doubt that it was appropriate to grant them the right to make such representations in accordance with 54.17. Mr Whale took the point that they had not applied promptly but that is not a absolute bar or, the law says, it should not be and, of course, it all depends on the circumstances. The reality is that it was known at all times by the claimant that Hopkins wanted to make representations. Indeed, they had made representations in the submission of an acknowledgement of service and later in the furnishing of evidence in the form of various statements from Mr Sneddon together with exhibits. In those circumstances, the claimant could hardly be taken by surprise by the emergence of an interested party at a late stage. This was a party who clearly was right from the outset interested and involved and wanted to continue to be involved, although they had disposed of their interest in the land. In those circumstances, I do not find it necessary to decide the question whether Hopkins had a right to make representations as a interested party. It suffices that they have been able to make such representations in accordance with 54.17.

[18]The second issue which has fallen away relates to the powers of the officer. It was not suggested in the original letter of 4th May to which I have referred that the decision of the Committee to delegate to the officer, subject to the section 106 agreement, the formal grant of permission, was ultra vires. However, that suggestion has now been made and was one of the grounds for judicial review. What was suggested was that, since this was treated as an application which fell to be considered as a level 3 application, it therefore had to be dealt with at all times by the Committee, because, if one looks at 150, it refers to the determination of an application for planning permission and the suggestion, as I understand it, was that this was not a determination. It seems to me that it was perhaps a little curious that the claimant really did want to take this particular point because it would undoubtedly have had a dramatic effect upon the way in which the Council carried out its planning functions. Furthermore, there is no question but that the Committee itself has the power to delegate specific functions in accordance with the general power given by section 6 of the constitution.

[19]The determination was, on the face of it, that planning permission should be granted. It seems to me that the argument based on the constitution that the delegation by the Committee was ultra vires was an exceedingly weak argument but I suggested to Mr Whale that he should take specific instructions as to whether it was a point that the claimant really wished to pursue. Having taken those instructions, he confirmed that it was not. In my view he was quite right and sensible to take that approach because, as I have said, although I have not heard full argument on the point, it is clear to me that the likely result would have been that I would have said that there was no validity in that argument.

[20]The effect of that is that, if the claim succeeds, the formal grant of planning permission will be quashed, the matter will go back to the officer to deal with it in accordance with the resolution of the Committee. Therefore one has to turn to the second main argument raised by Mr Wadsley, which is that the officer, albeit by mistake, had the power to do what was done and, since the question of whether a planning permission was valid has to be considered objectively and, of course, once it goes on record, as it were, it is permission which runs with the land and must therefore be able to be relied upon by anyone who has an interest in that land without the need to have to go to look at the source materials, if I put it that way -- that is to say committee reports, et cetera -- to see whether there may be anything amiss with it. As a general proposition, of course, that is correct. But equally it is, as the law has recognised, always possible for a court to be asked to intervene and to quash a decision if it is apparent that that decision was one which was made without proper authority and therefore it was not within the powers of the decision maker to make it. That is why the claim has been brought in the form that it has, because it is clearly not open to the Council itself to challenge its own decision and there is authority, I need not refer to it, which makes it plain that in circumstances such as this the correct course is to do what has been done, namely to have a senior member of the Council, in this case the leader who would normally be the appropriate person, to take the proceedings in his name and thereby to sort out the situation.

[21]The argument put by Mr Wadsley is that there is nothing in the resolution which indicates that the section 106 agreement has to be put into effect before the planning permission is granted. He draws my attention to the Council's decision in another case, dealt with at much the same time, in which the word "first" is included, which makes it plain beyond any doubt that the section 106 agreement did have to be put into effect before the permission was granted. He submits that the council was therefore clearly aware of the distinction that could be drawn between that sort of a case, where it was made plain that it had to be dealt with first, and this case, where there was no such requirement.

[22]It seems to me that it is clearly, to say the least, strange if when a planning permission is made subject to the applicant entering into a section 106 agreement the permission is granted before the agreement is entered into. Apart from anything else, it means that the Council is put at a considerable disadvantage because the applicant in question is always entitled to rely upon the permission that is granted. It may be said that it is open to the Council to revoke the permission if it appears that it should not have been granted in those terms and thus to avoid the problem. That will not necessarily avoid the problem because it will open the Council to a claim for compensation and it is obvious that there is at least a danger that the compensation might be said to be the extra amount that has to be paid by the applicant for entering into the 106 agreement when the permission that was granted had no 106 agreement obligations attached to it. It is not necessary for me to go into whether that would in fact be the position but it is plain that, from the Council's point of view, there are potential considerable disadvantages in allowing the permission to stand in seeking to negotiate from a position of weakness as opposed to strength and then either possibly revoking or reverting to a judicial review if there was an error in the grant. I can well understand the Council's reluctance to enter into negotiations on that basis. It seems to me that their approach, namely that there should be a quashing and the matter should be started afresh, as it were, in accordance with the resolution was the correct one. That is if the words "subject to the applicant entering into a section 106 agreement" mean that that has to be done in advance. As I have said, the idea that it comes afterwards is, at the very least, unusual because it puts the Council at a disadvantage.

[23]It seems to me that the only sensible construction of that wording is that the 106 agreement must be in place before the permission is granted. It may be possible that a permission could be granted which is itself subject to a condition that there cannot be any commencement of development until the section 106 agreement is entered into. That might be another way of dealing with the matter. But, as Mr Wadsley points out, there are dangers in that since there may be arguments that such a condition is too vague to be enforceable. Whether that would be the position here I doubt but nonetheless it is, I suppose, a possible alternative. But the sensible and, in my view, correct approach having regard to the language of the resolution would have been to dispose of the 106 agreement before the planning permission is granted. Mr Wadsley accepts that, in construing the resolution, it is appropriate for the court to take account of the minutes of the meeting at which the resolution was passed because that gives a clue to the proper construction of the resolution. It is to be noted that the applicant informed members that:

"... with each subsequent refusal, he had tried to work with the community to address the concerns raised. To this end the proposal was reviewed and technical reports commissioned. Recognising his commitment to the community of Wincanton he had acceded to requests for affordable housing, education contribution and highway improvements outside the site. Taking that into account he urged Members to take account of the information in the officer's report and approve the application."

It is those areas, affordable housing, educational contribution and highway improvements, which form the bulk of the section 106 requirements. In addition, it is noted that during the debate members speaking in support of the proposal took particular account of inter alia "the Section 106 agreement and additional conditions that the Development Control Team Leader proposed to add".

[24]It is apparent -- and again Mr Wadsley is not able to, and indeed does not, contradict this -- that the 106 agreement was put forward as a means of persuading the Committee to accept that planning permission should be granted. It had provided some positive benefits to the community which could not otherwise be obtained and that too makes it plain, in my view, that what was clearly in the minds of the Committee was that the section 106 obligation should be in place before any permission was granted.

[25]But it is in my view not necessary to rely on that because the words of the resolution are in my judgment entirely clear and the only sensible construction is that the section 106 agreement must be in place before any permission is granted. Otherwise, as I have said, the Council puts itself at a grave disadvantage and indeed runs the risk with a less scrupulous developer than Hopkins or Wimpey that they would say, "we have our planning permission, we are afraid we are not interested in the section 106 agreement and, if you want to do anything about that, you will have to revoke the permission and that means you pay the costs, rather than us".

[26]That leaves an argument that there has been prejudice to Hopkins and that therefore, as a matter of discretion, this planning permission should not be quashed. The basis of that submission lies in the suggestion that, if only the Council had entered into negotiations with Hopkins and perhaps carried them on with Wimpey, it would have been unnecessary to seek judicial review since Hopkins had shown themselves willing to enter into a section 106 agreement and the Council had only to put forward their requirements and then negotiate if Hopkins were not willing to comply with all those requirements. The Council did not take up that offer.

[27]In my judgment, the Council was not wrong in any way to act as they did. However genuine Hopkins may have been in making the offers they did, the reality is that the Council would have been at a disadvantage because they would have been negotiating from a position of weakness inasmuch as they had already granted the planning permission. So the situation was such that it was entirely reasonable for them, in my judgment, to decide that they needed to have that permission quashed. It is to be noted that the view taken by Hopkins and persisted in in this court was that the planning permission was indeed lawful and that the court would not and should not find in favour of a claim for judicial review. That was, as I have indicated, wrong, that equally the Council was entitled, however reasonable the solicitors appeared to be, to have regard to the attitude adopted initially by Mr Sneddon acting on behalf of Hopkins. In the background, there was always the possibility that, if Hopkins did not get what they wanted, they would simply say to the Council, "sorry, we are entitled to act upon the permission that has been granted".

[28]Furthermore it is difficult to see that there is any prejudice. True it is that more money might have been forthcoming if they had won the case. Nonetheless, the reality is that they were the recipients of an unlawful planning permission and therefore they had nothing on which they could properly rely. I accept that the permission is valid until set aside but the reality is, as I say, that once the relevant proceedings were taken it would inevitably have been decided that it was an unlawful permission and thus liable to be set aside. Thus all that they have lost is something which would have been a windfall and which was not something to which they were legally entitled and they could have avoided the delays if they had acceded to the request made on 4th May to consent to an order. They could have insisted that the order was limited to sending it back to the officer but what became ground 2 is not something upon which the Council can rely. If the council dug their heels in and said that the matter had to go back to the committee and was ultra vires, a different situation would arise. In those circumstances, it would have been much easier for the claimants to say that they had suffered some prejudice; albeit, when I say easier, I am far from persuaded that actually there would have been any because the Committee was not really able, unless there was a change in circumstances, to reach a different decision to that which they had reached back in 2006. However, that is all speculative and does not arise and the reality is, as I say, that the matter will go back to the officer.

[29]In those circumstances, I am entirely satisfied this claim must succeed. It is perhaps obvious, although I have not said it explicitly, that the defendant council is not opposing the claim and equally nothing has been heard from the first interested party or rather the first interested party has not sought to resist either. That is hardly surprising since it has no further interest, as I understand it, in the matter. Accordingly, I propose to quash the planning permission that has been granted and direct that the matter be considered in accordance with the resolution, namely by entering into the section 106 agreement before any planning permission is granted.

[30]I would only add that I am told that Wimpey have indicated that they are taking steps (indeed this is apparent from the agreement entered into between Wimpey and Hopkins) to make their own application for planning permission. It may be that they will decide that they will not pursue this permission but will in due course make their own. That is a matter of for them and does not affect the decision that I reach in this case.

[31]MR WHALE: My Lord, I am very grateful for that. Can I just briefly consult with Mr Wadsley to see if there is anything between us on costs?

[32]MR JUSTICE COLLINS: Well, can I just indicate this. I do not know quite -- I have somewhere a schedule, have I not, of costs?

[33]MR WHALE: If I anticipate you correctly, my Lord, if it helps, we do agree that it should go off to detailed assessment.

[34]MR JUSTICE COLLINS: Well, that is fine but there is, I think, a limitation. At the moment -- I assume, Mr Wadsley, that you cannot resist costs in principle. The only question is the extent to which --

[35]MR WADSLEY: Well, yes.

[36]MR JUSTICE COLLINS: What I am getting at is this: it seems to me that this is a claim which would have to have been made in any event and therefore I am wondering whether the costs against your client should be limited to costs incurred after the lodging of the judicial review claim; that is to say they should not cover the preparatory work in preparing the lodging or the lodging itself, because essentially, as I say, that was necessary as a result of the error made by the Council.

[37]MR WADSLEY: Yes.

[38]MR JUSTICE COLLINS: But had there been a consent, I do not think the Council would have sought to suggest other than that they had to bear the costs of obtaining the necessary consent order.

[39]MR WADSLEY: I think, in fairness to the Council, that is what they did suggest at some point.

[40]MR JUSTICE COLLINS: It is fairly obvious because there is no suggestion other than that the mistake was entirely their fault.

[41]In those circumstances, it seems to me at the moment, subject obviously to what Mr Whale may say, that the costs against you should not include the lodging. The sensible way to approach it to avoid any arguments about whether any individual item should be included would be perhaps to set a date from which costs can be recoverable, that date being possibly the day after the lodging, possibly a bit later. I do not know.

[42]MR WADSLEY: I have not given that aspect of it any thought, I must confess, my Lord.

MR JUSTICE COLLINS: As a matter of principle, do you --

[44]MR WADSLEY: No, no --

MR JUSTICE COLLINS: -- quarrel with the approach that I have suggested.

[46]MR WADSLEY: No, as a matter of principle I do not, but I have a number of points to make along the same lines, because there are two issues in which your Lordship has effectively said, well, there are issues that really --

[47]MR JUSTICE COLLINS: I accept that that is a further argument that you are perfectly entitled to raise and I will hear it in a moment. But just, in order to get it out the way, can I see what Mr Whale's approach to the suggestion I have made is?

[48]MR WHALE: Yes. Can I just be absolutely clear about one matter? Although there has in fact been a complete separation as between representation of the Council and representation of the claimant, that needs to be made clear. Moreover --

[49]MR JUSTICE COLLINS: Yes, but I am assuming, I hope correctly, that the claimant personally will not have to bear any costs.

[50]MR WHALE: You are correct in that, yes, but can I also explain that the statement of costs served on the court is referable only to costs incurred by the claimant and they run only from 18th May 2007, which is when the claimant, if you like, his instructions began.

[51]MR JUSTICE COLLINS: Yes, but I am not sure that that is a late enough date, because, as I say -- all right, a hundred pounds or whatever it is for lodging fee, but that, for example, I do not think you should be entitled to recover.

[52]MR WHALE: Well, I will come back to that in a moment, if I may, but I just wanted to make that first of all absolutely clear. As to whether or not the start date should be 10th July, which is the day after the claim was issued, I would resist that because what I would like to do is to hand to you, which obviously I could not do before, without prejudice save as to costs correspondence which predates 10th July. So can I please hand that up?

MR JUSTICE COLLINS: By all means. (Handed) Yes.

[54]MR WHALE: My Lord, I am told that Mr Wadsley does not have a copy immediately to hand. Obviously his solicitor will in his file somewhere. In that respect he is in the same position as me now, as I am quoting from memory.

MR JUSTICE COLLINS: Well, let me have a quick read and then I can pass it down if necessary.

[56]MR WHALE: My Lord, it is the second page. I have highlighted in the margin the salient point.

MR JUSTICE COLLINS: Shall I read it out, then you can hear? It says:

"Your client now faces a simple choice. It can quickly consent to the quashing of the planning permission, sensibly focusing its attention on substitute planning permission subject to a 106 agreement. Or it can look forward to very many months of costs and uncertainty as the claim winds its way through the Administrative Court and perhaps further."

You have actually done a bit better than sometimes, getting this on. "In this regard, the Leader of the Council is prepared to pay your client's reasonable legal costs to cover the period between 21 November 2006 and a signed consent order between all the parties whereby the planning permission of 21 November 2006 is quashed and/or declared to be void. This offer is on condition that the consent order is signed by all the parties and filed at court prior to the filing of any acknowledgement of service by your client and by the applicant, or else the consent order is signed by all the parties and filed at court within seven days of an acknowledgement of service being lodged by your client and the applicant stating that the claim will not be resisted.

[58]You have a copy now, have you?

[59]MR WADSLEY: I have been helpfully, my Lord, handed a copy.

MR JUSTICE COLLINS: Is there anything in the response?

[61]MR WHALE: Yes, my Lord. Before we turn to the response, the first letter did go on in the very next line to say that the claimant reserved the right to withdraw.

[62]MR JUSTICE COLLINS: Yes, indeed. That went without saying.

[63]MR WHALE: The reply came, as it happens, on 9th July, the day the claim was issued, the day before your proposal --

[64]MR JUSTICE COLLINS: Well, it was not actually received until the 12th. I see the stamp on it.

[65]MR WHALE: But that letter basically rejected the offer.

[66]MR JUSTICE COLLINS: Yes, I follow that, but I am not sure that that makes any difference, does it, Mr Whale, to the point I am making, namely that, come what may, you would have had to have issued in order to get the consent order or to get the matter quashed and therefore, as I say, itself, it does not seem to me you would be entitled to the lodging, and I do not see why you would be entitled to anything before that. You would be entitled to everything after that, certainly.

[67]MR WHALE: Can I just check to see whether there is any quarrel with a proposal that the claimant be entitled to everything after the 10th July. There may be no quarrel behind me.

MR JUSTICE COLLINS: When I say everything, that is subject to any argument about --

[69]MR WHALE: Of course. (pause) We are content.

[70]MR JUSTICE COLLINS: All right. Well, Mr Wadsley, I am inclined then to say that any costs payable by your clients should run from 10th July.

[71]MR WADSLEY: Yes. I do not think I can seriously quarrel with that. I would have suggested a later date but I am not going to press it in the light of that.

MR JUSTICE COLLINS: Well, I think you would be in difficulties.

[73]MR WADSLEY: Yes, I think so. Could I raise the other two matters in this case as a matter of principle? Those are the two issues about the vires of the resolution and the issue about the interested party.

[74]MR JUSTICE COLLINS: Well, the interested party issue did not really involve a great deal of extra time, did it, albeit a bit of extra preparation, I suppose, but no evidence?

[75]MR WADSLEY: Well, actually, it did not involve any evidence, I readily concede that, certainly not that I can think of. But it certainly involved quite a deal of extra research, I can tell your Lordship. I appreciate it may not have surfaced much in the skeletons but --

MR JUSTICE COLLINS: It is not an entirely straightforward point, I think.

[77]MR WADSLEY: Well, there is a lot of authority but when you look at the authority it does not take you anywhere in the end.

[78]MR JUSTICE COLLINS: Not very helpful authority. Apart from Muldoon.

[79]MR WADSLEY: Well, there is Muldoon and of course the earlier cases referred to in Muldoon, but there are, of course, a lot of cases about the factual side, there are a lot of cases about what lies behind the rule and things of that sort. When you actually get to them, they appear hopeful at first sight but, shedding a light on it, they almost invariably do not.

[80]MR JUSTICE COLLINS: But you could have cut through all this, could you not, by making a application under 54.17, because it did not matter to you whether you were directly effected or you got here under 54.17. What mattered to you was you got here.

[81]MR WADSLEY: Well, that is perfectly true but nonetheless the issues being raised had to be dealt with, not a proper issue in my submission, and the same is true of the other point.

[82]MR JUSTICE COLLINS: The other point, yes. The other point was a unfortunate one, because it did -- as I say, I am not sure whether the effect overall would have been so very different. But I take your point, there was always the greater risk if you went back to the committee.

[83]MR WADSLEY: Well, that is what coloured my client's thinking, as I tried to make clear as well.

[84]MR JUSTICE COLLINS: But, again, you never said "well, look, we are prepared to accept but only on the basis that you withdraw that too".

[85]MR WADSLEY: Well, I do not want to, as it were, try to interrogate your Lordship about the effects of the order you have made but --

MR JUSTICE COLLINS: By all means.

[87]MR WADSLEY: Then I do wonder the extent to which any reconsideration can be confined to the officers compatibly with what the Council is entitled to do. For example --

[88]MR JUSTICE COLLINS: No, the Council of course is entitled to do whatever it would have been entitled to do in any event. That cannot be stopped. But that would have been the position a year ago.

[89]MR WADSLEY: Well, exactly so and it is because of the appreciation of that point that my clients took in part at least the attitude that they took.

[90]MR JUSTICE COLLINS: But the attitude was based upon an assertion that the planning permission was lawful and, once that falls away, as it has, that is no longer a proper basis. I mean, my order does not require the officer to do it on his own, all my order requires is that it is now dealt with by the officer in accordance with the resolution on the basis that the 106 has to be in place before, which is what actually they assumed to be the position in any event. I mean, that was the Council's view. It always has been the Council's view. It was a unfortunate oversight, a mistake, which led to the permission being granted in the way that it was.

[91]MR WADSLEY: Well, all I would say on these two matters really is that the costs of these two issues should be excluded from the costs to which they are otherwise entitled.

[92]MR JUSTICE COLLINS: Yes, the other way of doing it is, rather than do that -- because that creates problems and can create problems with decisions where the particular item was or was not -- is to say that costs should be limited to a percentage. That is usually the more satisfactory way, I think.

[93]MR WADSLEY: Well, it draws a line under it.

[94]MR JUSTICE COLLINS: Certainly that means that you do not go into detailed arguments as to whether a particular piece of work was in part perhaps or in whole related to --

[95]MR WADSLEY: I would be perfectly content with that.

[96]MR JUSTICE COLLINS: Well, if I were in you favour at all, I think a sensible way would be to say a percentage.

[97]MR WADSLEY: Yes. I would agree with that.

MR JUSTICE COLLINS: What about you, Mr Whale?

[99]MR WHALE: My Lord, I would also adopt the percentage approach if you were to go down that route.

[100]MR JUSTICE COLLINS: Oh, if I am going doing that road I think that is the only sensible way of doing it.

[101]MR WHALE: Indeed. I would urge you to resist that course. I will take you in two parts. The interested party point: this is, as I think your Lordship said in his judgment, an interesting point, as indeed Sir George Newman said when granting permission. It is plainly, in my submission, not only a point of interest but was a point that was reasonable to take once events had changed and Hopkins was no longer the landowner. As you have said, there was never any application as such under 54.17. The long and the short of it is that the claimant ought not to suffer the consequences of taking an interesting point.

MR JUSTICE COLLINS: I am not sure whether interesting tips the balance.

[103]MR WHALE: No, it may not tip the balance but that is the only fair way to categorise that point and it may have been -- if you had deemed it a possible determinative point, it may have been a point that determined the matter in the claimant's favour. But let us suppose you were with the claimant on the condition precedent point, as you were, but you thought the prejudice arguments were rather more powerful than you have concluded, that point in between may indeed have been determinative --

[104]MR JUSTICE COLLINS: But I mean the reality is, I think, with respect, Mr Whale, that it was quite clear that Hopkins had a interest. I mean, to define that interest, they were affected, again, whether indirectly or directly, and it will have been frankly strange, or I think wrong as a matter of fairness, for the court to have said we are not going to listen to you. It is not as if they are not worth firing a shot and come along an make a nuisance of themselves. They have a real interest. You are not going to suffer, or you would not have suffered, in any way unless you were so afraid of their arguments that you did not want them to be present at all.

[105]MR WHALE: No. They obviously cannot be described as the crank or the busybody that I think has been referred to in terms of standing. But all the claimant can do is have regard to the rules and properly advise and observe the distinction between an interest and a direct effect.

[106]MR JUSTICE COLLINS: I know, but what you could have said is we do not think you are any longer an interested party but we recognise that if you do not make an application you will almost certainly get in under 54.17.

[107]MR WHALE: I think that the height that it was put at in the skeleton arguments was that they were not an interested party. I was silent as to 54.17.

[108]MR JUSTICE COLLINS: Well, I am bound to say, I do not think you had a valid point, as I think I said at the outset.

[109]MR WHALE: On the second matter, that is to say the constitutional vires of the resolution, well it obviously has not played a particularly significant part today. I would just mention, because I think those behind me will forgive me for saying that if I played a part in writing the letter of May --

MR JUSTICE COLLINS: Which letter? 4th May?

[111]MR WHALE: Yes. I am very content to overlook it, given the outcome but --

MR JUSTICE COLLINS: I think it was quite right.

[113]MR WHALE: Well, I heard with a wince the suggestion that this point was not taken in that letter. In fact it was.

MR JUSTICE COLLINS: Was it?

[115]MR WHALE: Yes.

MR JUSTICE COLLINS: Well, in that case I did not read it carefully enough.

[117]MR WHALE: No, my Lord, because I obviously could have mentioned that to you this morning. But it is at the foot of page 467.

MR JUSTICE COLLINS: In that case I apologise.

[119]MR WHALE: None is necessary. I am very content to overlook it in the circumstances.

MR JUSTICE COLLINS: 467.

[121]MR WHALE: Right at the foot.

[122]MR JUSTICE COLLINS: Yes, I see. You are quite right.

[123]MR WHALE: I suppose that does not take me very far.

[124]MR JUSTICE COLLINS: Well, I think it is a bad point anyway, but there we are. It unfortunately created its problems, I think.

[125]MR WHALE: Well, it did not in the end but --

MR JUSTICE COLLINS: Well, it has not in the end, I know.

[127]MR WHALE: All it would have done, if I had succeeded on that point and the permission had been quashed, it would have meant the matter would go back to committee rather than to Mr Gale. The Committee would have needed very good and cogent reasons to have departed from its earlier resolution.

[128]MR JUSTICE COLLINS: I am bound to say, I am very surprised at your -- I know your clients are strictly speaking legally not the Council but it does surprise me that they thought this was a point they should take.

[129]MR WHALE: Well, there we are.

MR JUSTICE COLLINS: Because it messes up their own administration, does it not?

[131]MR WHALE: Well, the Council may welcome some clarity on the matter.

[132]MR JUSTICE COLLINS: Actually, now this issue has been raised, all the Council needs to do is add a paragraph to its constitution and make it clear.

[133]MR WHALE: I have no doubt that has been taken on board.

[134]MR JUSTICE COLLINS: That will avoid this problem in the future. I think it is obvious that it is not so desirable to have a committee considering details of 106 agreements. Quite apart from anything else, it takes up an inordinate length of time, committees which I do not doubt have plenty to do otherwise.

[135]MR WHALE: I am sure that is right. But it would necessarily have meant that the Committee would have to do the drafting, just that it would have to have taken the decision.

[136]MR JUSTICE COLLINS: Well, I know. There is always someone who has to have his own ideas about what is needed.

[137]MR WHALE: If there is to be any discount in terms of cost, it should be a minimal one but, particularly having regard to the correspondence I have just shown you and the Council's offer, the sensible course it put forward, that was, I am afraid, unfortunately rejected for its own reasons by Hopkins.

[138]MR WADSLEY: Well, only a short point on the vires point. First of all it did involve us in a certain amount of work because we have to try and sort out what was in the constitution and that for various reasons took a bit of sorting out. The second point really is that it is all very well for my learned friend to say, well, we should have accepted the offer, but the offer was predicated against the background of this and I have explained my concerns about that.

[139]MR JUSTICE COLLINS: Hopkins have failed to persuade the court that the planning permission, despite the mistake, should be allowed to stand and, accordingly, the claimant is prima facia entitled to costs of the proceedings. Since the error was the error of the Council and the judicial review proceedings would have had to have been brought in any event in order to quash the permission which had been granted, in those circumstances it seems to me that it is wrong in principle for Hopkins to have to pay the costs incurred by the claimant prior to the institution of proceedings. In fact, I suspect there were very little if any costs incurred by him because any pre-action discussions were with the Council and it was the Council's responsibility and I do not imagine that the claimant incurred any costs, whether apparent or real. So I shall direct that any costs payable by Hopkins should run from 10th July, the date after these proceedings were instituted.

[140]Mr Wadsley has submitted that they should not pay the whole of the costs because there were two issues in respect of which I have not found in the claimant's favour. The first related to the question of whether Hopkins were an interested party and the argument as to whether they were directly affected. It seems to me that the reality here was that they had an interest and that it would have been quite wrong for any court to have shut them out from raising such arguments as they wished to raise directed to the validity of the permission, whether or not those arguments in the end were successful or good or bad or indifferent. Whether or not they were interested parties within the meaning of that term in the rules was not really the point because they clearly were entitled under 54.17 to appear. In those circumstances, frankly the argument was not one which really was going to be likely to prevail, inasmuch as it was an endeavour to shut Hopkins out from appearing at all before me. I appreciate that the matter was raised before Sir George Newman and he directed in terms that this was a matter which should be considered by the court which considered the substantial application. It would perhaps have been desirable, if anyone had thought of it at the time, that a 54.17 application were made and a direction issued, perhaps by Sir George at the time that permission was granted. However, that was not done.

[141]The second matter relates to the assertion that the delegation to the officer by the Committee was ultra vires. As I indicated in my judgment, I took the view that that was not a good point and I specifically asked Mr Whale to confirm whether his client really wanted the point to be taken and he, having taken instructions, indicated that he did not. I appreciate I did not hear full argument from him on the point but I have of course read the skeleton arguments and the chances that I would have been persuaded on the point are infinitesimal. It is perhaps desirable now that the matter be put beyond doubt by some amendment to the constitution because, as I have indicated, it seems to me that good administration and common sense and a sensible reading of the constitution and the relevant provisions all point to this being a power that is properly exercised. In those circumstances, Mr Wadsley submits that there should be a percentage of the costs taken off to reflect the failure by the claimant to succeed in persuading the court that either of those issues were ones which should have been taken.

[142]So far as the second is concerned, it is perhaps material because, albeit mea culpa I had not completely appreciated that in the letter of 4th May this point was made, the reality is that it did create an added barrier to Hopkins accepting the consent because they thought the matter would have to go back to the Committee rather than to the officer. As again I said in my judgment, I am far from persuaded that that would have made any material difference because I do not think that the Committee could have changed their view. Perhaps it would only change the circumstances. Nonetheless, it obviously could add to delays and create extra problems if the Committee had to approve the 106 rather than the officer himself. No doubt if there were difficulties concerned, the officer could always refer the matter back via the chair of the Committee to the Committee if he thought it necessary to do so. That is a possibility which may arise in any event.

[143]It is always difficult to do other than take a very broad brush approach to situations such as this. As I have said, it seems to me that the right approach, and indeed both counsel accept this, is to consider whether it is appropriate to award, instead of all the costs, a percentage. I think it would be right to reduce the amount by some percentage, albeit I am persuaded that that percentage should not be a substantial one.

[144]In all the circumstances, it seems to me that the correct order would be that Hopkins pay the claimant 85 per cent of costs, to be the subject of detailed assessment if not agreed.

[145]MR WADSLEY: I am obliged, my Lord. I do have a brief application in respect of leave to appeal.

MR JUSTICE COLLINS: You know you are not going to get it.

[147]MR WADSLEY: I know I am not going to get it. May I just say this really quite briefly? So far as the interpretation point is concerned, I think it was Sullivan J who in a case once said, well, points about interpretation are points of impression and what creates an impression on one mind one way quite frequently creates impressions on other minds in an entirely different way.

MR JUSTICE COLLINS: Yes, that can apply.

[149]MR WADSLEY: Essentially, it is an interesting and quite an important point and that is why I ask for leave in relation to that. So far as prejudice is concerned, I appreciate it is slightly more difficult, shall I say, but as far as prejudice is concerned what I do say is that there is an issue to be considered in relation to the way that the negotiations and the discussions went and I would respectfully submit that it is something that is a matter of some interest certainly for developers in my client's position, particularly when one looks at the significance under the planning rule of law. So I ask for leave on both points.

[150]MR JUSTICE COLLINS: No, as I say, you will not be surprised. I think you must go to the Court of Appeal if you really want to -- I suppose if -- well, actually, I am not sure you have much interest really. In order to avoid paying you 1.5 million, all they have to do is make their application.

[151]MR WADSLEY: They have to do more than that. They have to make their application, get it past and start the development. It has to be implemented so they have quite a long way to go.

MR JUSTICE COLLINS: All right.

[153]I have to fill out this wretched form for the Court of Appeal. (pause) It is a pretty pointless exercise because the matter is usually dealt with on the transcript but I am supposed to give reasons for the decision to refuse you leave to appeal and what I have said is the point is clear that the 106 agreement must be in place before permission since any alternative is absurd and there has in the circumstances been no prejudice. This case depends on its own facts.

[154]MR WADSLEY: I am obliged.

MR JUSTICE COLLINS: Thank you both.

[156]I repeat my rude remarks about the volume of paper. I mean, seriously, there is a really quite unnecessary amount of material put forward and there was also a degree of duplication. Quite apart from protecting forests, it is a matter that you really ought to take into account because, as I say, we do have to cart these around and we are not pleased if we get a unnecessary amount of material.

[157]There is a lot to be said for a core bundle. Obviously you can have available here -- I have actually said this from time to time on judicial review applications, that it is in my view quite unnecessary for the bulk of material that is often put forward to be put forward. Of course, you have to put in everything that is material, and obviously material, particularly if it is arguably against you in any way, because of the duty of candour and so on. But as a general proposition, what parties should consider doing is putting in that which is clearly material. For example, if you have a reference to a PPG or whatever it may be and you are only interested in a couple of paragraphs, there really is not any need to include the whole of the document. You have it available so that the other side can see it and bring it to court if you want but keep just for the purpose of getting permission and the purpose of lodging that material which is clearly necessary. Obviously err on the side of caution because you do not want to be faced with an assertion that you have not put something that ought to have been in the papers and therefore you may have misled the judge into granting permission when he would not otherwise have done or whatever maybe the situation. But it is often our experience that the large volume of material is actually unnecessary. As I say, bring it to court so that it is there if there is a need to refer to it but do not burden the court with it unless it really is necessary to do so. Planners are often, in my experience, rather bad at this and you do get huge bundles, because it is easier, it is the lazy approach, you just shove everything in and run up vast copying charges which may not be in the public interest.

[158]All right.