Case Nos. C1/2015/0823, C1/2015/0824 & C1/2015/0825 
Neutral Citation Number: [2015] EWCA Civ 854
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
Royal Courts of Justice 
Strand
London, WC2A 2LL 

Date: Wednesday, 1 July 2015
 
B e f o r e: 

LORD JUSTICE BURNETT 
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Between: 
HOWARD & ANR 
Applicant

v 

WIGAN COUNCIL & ANR 
Respondent 
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DAR Transcript of the Stenograph Notes of  
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Mr M Hutchings (instructed by Richard Buxton) appeared on behalf of the Applicant
Mr S White QC (instructed by Gateley LLP) appeared on behalf of the Respondent 
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J U D G M E N T

1.	LORD JUSTICE BURNETT:  I am concerned with three applications for permission to appeal against orders made by Supperstone J in the Planning Court which have been refused on paper by Sullivan LJ.  
2.	Despite the arguments that have been advanced this morning by Mr Hutchings, I am satisfied that there is nothing in any of the grounds, including the reliance on fresh evidence which has emerged in the last few days.  
3.	The decisions challenged are, first, the dismissal of the claim for judicial review of the planning permission; second, a procedural decision relating to costs; and third the judge's refusal two months after the judicial review proceedings had been dismissed to admit fresh evidence and reopen them.  
4.	That last application was made possible by an unexplained failure by the Planning Court to draw and seal the formal order.  Mr Hutchings tells me this morning that it has still not been sealed.  
5.	The Applicants have provided further evidence in connection with this application for permission.  In particular, there is a long statement dated 25 June, that is last Thursday, from Miss Bennett which suggests that, as she and the others involved in this litigation have always believed, parts of the site have substantial concrete slabs just below the surface.  That forms the foundation of the claim that a number of trial pits (and now we are concerned with trial pits 16, 17 and 18) on the material site could not have been dug, as was suggested by the Interested Party and their various consultants.  
6.	The original judicial review proceedings appeared to be unexceptional at their inception.  On 14 February 2014, Wigan Council granted planning permission to Morris Homes Ltd to build 39 dwellings on a site at Heron's Wharf, Appley Bridge, Wigan.  The Claimants live in properties adjoining the site or at least on the other side of a railway track adjoining the site.  
7.	It is a brownfield site which was formerly occupied by a chemical works.  Contamination resulting from its previous use was plainly an issue in the context of the planning application.  On the strength of the analysis of samples taken from sample pits, the Council was satisfied that any risk could be mitigated.  There were, as I understand it, a total of about 24 pits.  Four featured in the dispute before Supperstone J.  
8.	No Environmental Impact Assessment was required by the Council.  On 24 May 2014 Mitting J gave permission in respect of an EIA challenge, but nothing else.  The Council had undertaken an EIA screening opinion.  It was said by the Claimants to be invalid.  
9.	In October 2014 the Claimants sought to introduce the suggestion that in respect of four of the pits, they were not dug as the Interested Party suggested.  That, as it happens, was less than a week before the hearing which had to be adjourned.  
10.	The Interested Party responded to that allegation by producing evidence from the senior engineering geologist from GRM Development Solutions Ltd, who were the independent contractors engaged by the developers to undertake the sampling.  In turn, they engaged independent contractors to do the drilling, DP Drilling Ltd, whose managing director also produced a statement.  So did the man who drove the digger.  
11.	All explained that the Claimants were mistaken in their suspicions that the pits were not dug.  The Claimants maintained their position, which plainly amounted to a serious allegation of bad faith against those involved, and inevitably suggested that the witnesses concerned had perjured themselves.  
12.	The judge acceded to an application for cross‑examination, unusually in judicial review proceedings.  The Claimants and another resident gave evidence, as did those I have identified.  
13.	The judge himself conveniently summarised his findings on that issue, namely the falsity of the evidence relating to the pits, in a later judgment he gave on 27 February 2015 in connection with the application to admit fresh evidence: 
"8.  I accepted the evidence of Mr Tomkins, Mr Pennington and Mr Walsh, which was supported by the contemporaneous documentation.  I was entirely satisfied that the work that Mr Tomkins said was done was indeed carried out.  He produced his original notebook in his own handwriting which included notes of the work that he did on 11 and 12 February in relation to the individual trial pits which he wrote at the time.  He also referred to the trial pit log which includes his notes as written up by him afterwards which also shows the work that was done.  The evidence in issue focused in the main on trial pits 4, 16, 17 and 18.
9.  In my view, the contemporaneous notes Mr Tomkins made and the trial pit logs fully supported his oral evidence.  In an ex tempore judgment I concluded that his new ground of challenge based on the allegation that GRM and their contractors had been dishonest and deliberately produced false soil sampling data was not arguable and accordingly permission to apply for judicial review was refused.
10.  After delivering that judgment I heard submission on the sole remaining issue in claim 2 and claim 1.  Mr Dale‑Harris accepted that in the event that claim 2 was dismissed claim 1 was academic and should also be dismissed.  At the conclusion of the hearing on 12 December I reserved judgment on those issues, namely ground 1 in claim 2 and claim 1." 
14.	There was always a curiosity about the allegation, which is well summarised in Mr White QC's skeleton argument on behalf of the Interested Party at paragraphs 13 and 14:
"In essence, the contention of the Appellant is that 4 trial pits...  were not carried out on the 11th and 12th of February 2014 and that, in essence, the results of those trial pits were fabricated by the IP's consultants.  
14.  It is worth just reflecting on that for a moment.  Even putting the Appellant's case at its highest, the IP's consultants fabricated only 4 of 24 trial pits and those 4 trial pits all showed levels of contamination which exceeded the accepted levels.  Therefore, the IP's consultants fabricated results which showed unacceptable levels of contamination requiring remediation.  It is a complete mystery why professional consultants would invent results that would ruin the individuals concerned, ruin the consultancy who specialise in producing such results, only seek to invent 4 such results in a field of 24 and finally produce results which required an onerous remediation requirement."
15.	The Claimants had costs protection in respect of their orthodox challenge, but as I understand it, the costs protection did not extend to what might be described as the conspiracy matter relating to those pits.  Costs issues are yet to be resolved and now include an application for wasted costs against the Claimants' solicitors.  
16.	There was a hearing relating to costs matters on 29 January which forms the subject matter of one of the applications for leave to appeal.  The judge found, in short, that these allegations should never have been pursued.  
17.	As I have noted, the court order following the dismissal of the judicial review claim, including the refusal of permission in respect of the pits allegation, was not drawn up.  It was in those circumstances that the Claimants produced fresh evidence and made an application to reopen the case.  They obtained an ex parte out of hours order at the second attempt on 17 February 2015 restraining any further work.  
18.	As a result, there was an inter partes hearing before Supperstone J on 27 February.  The judge resolved the question whether to admit new evidence and order an investigation against the Applicants.  He also considered the application to discharge the injunction and he discharged it.  
19.	The judge in that judgment summarised the nature of the evidence before him then: 
"16.  The evidence on which the claimants now rely is contained in the fifth witness statement of Ms Bennett, the fourth witness statement of Ms Foster of Richard Buxton, who has had the handling of this case throughout these proceedings, and the exhibits to those two statements, all of which were before Walker J.  There is now a further witness statement from Ms Bennett dated 25 February 2015.  That is here sixth witness statement.  From Morris Homes there is the third witness statement of Mr Tomkins dated 19 February 2015, a witness statement from Mr Hodgkinson of GRM of the same date and a witness statement from Mr Grady of Morris Homes.
17.  It is common ground that no order having been drawn up dismissing the two claims I have no power to revisit my decision to refuse permission on ground 2 in claim 2.  In the matter of L and B Children [2013] UKSC 8, the Supreme Court confirmed that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected.  In L and B, having reviewed the authorities, Lady Hale (with whom the other members of the court agreed) stated at paragraph 27 that, when a judge is exercising his jurisdiction to revisit his own decision at any time up until his resulting order is perfected, she...
20.  "... it is highly likely that there is a slab or concrete foundation within the fenced off area, and that if further trenches were to be dug in the location of TP4, TP16 and TP17 this would reveal concrete in the locations of TP4, TP16 and TP17 alleged by Mr Tomkins to have been dug at a depth of 3.3m, 3m and 3.1m respectively.  These holes are supposed (according to the trial pit logs) also to be 3m x 0.6m.  We believe that the concrete would have impeded digging much below the surface at TP4, TP16 and TP17."
21.  Mr Tomkins responds to these allegations as follows.  First in relation to TP4, he states:
22.  "I explained in my earlier witness statements and in oral evidence to the court the process for the excavation of trial pits.  I referred to the trial pit log, which is the record of the results of the trial pit exercise prepared by myself.  The trial pit log for TP4 records the first presence of broken concrete at a depth of 1.3m and continued to be present up to 1.0m.  As the concrete slab was broken it was weak enough to allow the excavator bucket to break through the concrete enabling excavation to continue at a lower depth.  I refer also to my handwritten notes from my personal logbook which indicate the presence of a concrete slab and that the slab was broken through."
23. In relation to TP16 and TP17, Mr Tomkins says that these trial pits are located within the area that has historically been fenced off when the site was originally remediated.  He says:
24.  "The agreed remediation strategy for the area of TP16 and TP17 requires a 750mm capping layer to be constructed to protect end users from the contaminants found during the trial pits and sampling.  This is to comprise 600mm of topsoil/subsoil and 150mm thick anti‑dig layer (stone).  The anti‑dig layer (crushed sandstone) has already been laid across the area, sealing in the identified contaminants from the workforce.  In due course a 450mm (approx.) of subsoil (sand) will be added and a layer of topsoil of 150mm (approx.) will be laid.  Clean topsoil has already been stockpiled in this area on a plastic sheet for later use.  There is no evidence of a concrete slab in the location of TP16 and TP17.  The trial pit logs do not record the presence of concrete in the same way that the trial pit log did do for TP4.  There is no evidence the concrete slab in TP4 extends to TP16 and TP17, rather, the trial pit logs prove otherwise.
25.  Mr Hodgkinson, who is employed by GRM as a geotechnical engineer, says in his statement that he was on site on 17 February 2015 conducting a regular weekly visit to review progress.  Whilst preparing to supervise the removal of the concrete slab and observe the ground below it, he looked at the location of TP4.  Soil had been cleared from the concrete slab which was encountered in TP4.  A hole in the concrete slab is clearly visible where the bucket of the excavator which excavated the trial pit had broken through the slab.  He also confirmed that on that day he observed the area of TP16 and TP17 and he describes in his statement what he saw there.  Mr Hodgkinson says there is no evidence on site to indicate that the concrete slab observed in the trial pit logs for TP4 and on his visit to site on 17 February extends to the positions of TP16 and TP17...
27.  Mr White submits that there is no new evidence which relates to what happened on 11 and 12 February 2014, which are the material dates.  The claimants' contention, that what they had seen in the last 10 days, namely a concrete base in the area of TP4, TP16 and TP17, proves the trial pits could not have been dug on those dates in February 2010, is, he submits, without foundation.  The evidence of Mr Tomkins and Mr Hodgkinson, who have the requisite expertise, shows, Mr White submits, that the claimants are misinterpreting what they have seen.  They acknowledged at the hearing in December last year they have no experience or knowledge of the works that have been undertaken.  There is, Mr White submits, no professional evidence of any kind before the court that supports the claimants' contention that the trial pit samples in issue were not taken in manner described by Mr Tomkins on 11 and 12 February 2014.  Mr White further submits that it is far too late no for this interim relief to be granted.  When the claimants were served with the interested party's witness statements and contemporaneous documentation in November 2014 they should have then requested inspection or instructed an expert if they had wished to challenge the evidence.  That was the time, pre‑trial, for the further investigation that the claimants now apply for to have taken place.
28.  Any new evidence has to be considered in the context of the evidence as a whole.  In forming a view as to the credibility of the new evidence, I have had regard to the oral evidence I heard from Mr Tomkins and the other witnesses who gave evidence on behalf of Morris Homes in December 2014 and to the contemporaneous documentation, in particular the documents relating to TPs 4, 16 and 17 that were considered on that occasion.  It is now said by the claimants that TP4 is not where Mr Tomkins said it was.  At no stage during that hearing was the evidence of Mr Tomkins as to the position of TP4 challenged.  I considered Mr Tomkins, having heard him give evidence and been cross‑examined on the notes of the work that he did on 11 and 12 February 2014 in relation to the individual trial pits which he said he wrote at the time, to be a truthful witness.  I have given careful consideration to the two witness statements of Ms Bennett, to which I have referred, and to the photographs exhibited to them and to the contents of the statements of Mr Tomkins and Mr Hodgkinson and also in particular to the original notes made by Mr Tomkins and the trial logs in relation to TPs 4, 16 and 17.
29.  In my judgment, there is no real prospect that what the claimants contend to be new evidence would lead me to reach a different conclusion on claim 2, ground 2.  In the circumstances, I consider that to admit the evidence at this stage would be wrong and contrary to the interests of justice.  In reaching this conclusion I have also had regard to the factor referred to by Lady Hale in L and B, namely whether a party has acted upon the judge's decision to his detriment.  I am informed that since my judgment in December 2014, Morris Home embarked on the works that they are presently carrying out, which are no partially completed.  Mr Grady, employed by Morris Homes as the Northern Technical Director, who is responsible for the management of technical activities at the site, sets out in his witness statement of 25 February 2015 the implications on the restriction in carrying out works within TP16 and TP17 in terms of cost and the remediation strategy agreed with the Council and Environment Agency." 
20.	Save for that new evidence point, amplified as it has been by the recent evidence which I have mentionedaverted, there is no available basis for challenging the orders of the judge made in December last year refusing permission to apply for judicial review on the pits or conspiracy ground or otherwise dismissing the claim for judicial review on which permission has been granted.  
21.	It is undoubtedly true that the allegations made by these Claimants are very serious indeed.  The new evidence in February comprised their observations between December 2014 and January 2015.  They assumed, as a result of their observations, that their original allegations were correct.  The various things that they saw were explained in statements which were placed before Supperstone J and which he considered in detail during the course of the two day hearing.  
22.	One of the matters which is surprising at the least is that whilst the witnesses have no relevant expertise at all, they appear not to have sought an informed expert opinion to support the contentions that they were then describing.  That is odd, given that there were photographs and videos.  
23.	It is even odder, in my judgment, that that has not happened in respect of the fresh evidence that was produced in a statement which I am asked to take into account dated 25 June.  
24.	I indicated to Mr Hutchings in the course of argument that I was troubled about the circumstances in which this evidence has come before the court.  Less than a fortnight ago, an application was made to adjourn these proceedings on the grounds that the solicitor responsible for the matter on behalf of the Applicants would be unable to be here.  There was no suggestion that there was going to be any fresh evidence.  
25.	The evidence deals with observations which were made, to begin with, on Friday, 15 May and continued through the rest of May and then into June.  The result of that is that the statement came late and the Interested Party has had little opportunity to deal with it.  
26.	Mr Hutchings submits that the statement, coupled with the photographs, shows that there is or was concrete in the vicinity of trial pits 16, 17 and 18.  Trial pit 4 appears to have fallen away as an issue. 
27.	At first blush, my own non‑expert view of the photographs would be to agree.  It does look as though some concrete has been found, but that does not, to my mind, begin to determine whether what has been seen could undermine the findings of the judge to which I have referred.  No doubt there was much concrete on this site.  It was, after all, a former industrial site.  The question which the issue goes to is whether the witnesses who were called and cross‑examined before Supperstone J accurately and honestly described what they had done.  
28.	Mr White to my mind fairly points out that long distance photographs are really nothing to the point when one is concerned with the precise circumstances of what was in a pit dug in February 2014.  
29.	Mr Hutchings submits that this is now a Ladd v Marshall case.  I should note that the short evidence produced by the Interested Party in response to this, again from the independent contractors, suggests that they have found nothing inconsistent with the original February 2014 investigations.  
30.	I am very far from satisfied that if an application were made to adduce this evidence in the appeal, applying the Ladd v Marshall principles, that it would pass muster.  
31.	So far as the order for costs is concerned, the complaint essentially is that the judge has foreclosed issues that are relevant in the wasted costs application.  The hearing on 29 January was concerned, as I understand it, with both the wasted costs application and also the costs consequences, including protective costs of the hearing before the judge in December.  
32.	Mr Buxton was there and made his submissions.  The judge adjourned the matter to enable Mr Buxton to consider matters, I infer, of waiver of privilege with his clients and also to engage the views of his insurers.  
33.	I cannot agree that there was anything improper in the order that was made by the judge.  The wasted costs application will no doubt in due course be considered in the light of the principles well‑known that were originally articulated in Ridehalgh v Horsefield in 1994.  
34.	Sullivan LJ rejected these applications in robust terms.  In my judgment, he was right to do so.  The further evidence produced late in the day does not, in my judgment, change the position at all.