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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> San Vicente & Anor v Secretary of State for Communities & Local Government & Anor [2013] EWHC 2713 (Admin) (01 July 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/2713.html Cite as: [2013] EWHC 2713 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1 July 2013

1. MR JUSTICE COLLINS: This is an appeal pursuant to section 288 of the Town and Country Planning Act against the decision of an inspector, given as long ago as June of last year, whereby he allowed the appeal of Taylor Wimpey against the refusal by the local authority of planning permission for a residential development on a site on land south of Ongar Road in Great Dunmow, Essex. The appeal is brought by a number of objectors to the application on the basis that things went wrong procedurally. The only ground of appeal which survives, because there was an application to strike out, is this:

"The [Secretary of State]'s decision was unlawful by reason of procedural unfairness, namely the failure to ensure that all parties were notified of the hearing in accordance with the Town & Country Planning (Hearings Procedure) (England) Rules 2000 and having discovered a complete absence of notification of concerned residents, his failure to re-start the inquiry with a new Inspector."

2. That ground was not originally raised. The grounds which were raised, and which led to the application to strike out, were none of them points of law; they were all essentially matters of planning judgment. But they made it clear that the objectors were not happy with the outcome of the appeal to the inspector, and there was considerable local resistance to this application. The council's officer had recommended that the application be allowed, but the council had decided that it should not be.
3. The refusal was on four separate grounds. The first was that:

"The site lies outside the development limit where in accordance with Uttlesford Local Plan Policy S7 the countryside is to be protected for its own sake, the countryside will be protected from development unless it needs to be there or is appropriate to a rural area. The proposal would involve the erection of market housing which is not an appropriate form of development in the countryside, does not need to be there and would not protect the character of the countryside. The level of development proposed would be harmful to the character of the area. It therefore fails to comply with Policy S7 of the Uttlesford Local Plan."

4. Grounds 2 and 3 I need not go into. Essentially they are matters which were omitted but were in relation to affordable housing and mitigating the shortfall of primary school places. But those were matters which could be, and in due course were, dealt with by section 106 agreements.
5. Ground 4 was:

"The proposal would give rise to unacceptable level of road safety and traffic generation which would compromise the safety and convenience of users of the highway. It therefore fails to comply with Policy GEN1."

So far as that is concerned, there was evidence produced from the Highway Authority which indicated that various models and tests had been undertaken which satisfied the Highway Authority that there would be no generation of an unacceptable level of traffic which would or could compromise the safety and convenience of users. That was not a matter which objectors accepted, but of course it was a formidable barrier to any objection they raised on that score being accepted by the inspector and prevailing. Nonetheless, it was a matter which clearly they were interested in raising.

6. As I have said, the ground relied on is a procedural defect. There is no doubt that that defect existed. Whoever was primarily to blame - and it appears to have been accepted by the council that it was to blame - proper notification was not given to those who had made written objections and who were entitled to attend if they wished and make representations at the inquiry nor were they notified when and where the inquiry would be carried out. So it was that when the inquiry opened no objectors attended. The only persons there taking part (apart, of course, from the inspector) were the representatives of the appellant, the council, by two of the councillors who had been concerned in the matter. They were accompanied by the council's planning officer, who had incidentally, as I have said, been recommending that the application should be granted.
7. There was a point made at one stage by at least one of the objectors that that was unsatisfactory, but I am afraid there is nothing in that. It is perfectly proper and open to the council to have its planning officer in attendance, even though the recommendation has been contrary to that which the council eventually decided. There is no suggestion and can be no suggestion that the planning officer in any way misbehaved in what occurred before the inspector.
8. The inspector says that it was his experience that, albeit there were objections to planning applications, those objections were not always taken on by objectors attending a hearing and thus he was not entirely surprised that no objectors attended. He did check, he says, whether proper notification was given and was shown a letter which appeared to indicate that it had been. However, he concluded the hearing (that is to say the hearing in the council offices) on the first day, 11 April 2012, and went on a site visit the following day. It appears that at some stage on that day it was brought to his attention that the proper notice had not been given. Accordingly, it was necessary to decide what should be done.
9. Mr Whale has raised the point that it does not appear from the evidence that there had been any decision by the Secretary of State to delegate the means of notifying the hearing to the council, which is a course that can be adopted in accordance with the regulations. Accordingly, it was, he appeared to submit, not open for this point to be taken now. However, as I indicated in the course of argument, it seems to me that that is a point which has no merit at all because there can be no question but that the objectors who had objected in writing should have been notified because they were, within the meaning of the relevant regulations, statutorily entitled to appear and to have their objections considered by the inspector. It seems to me to matter not who was to blame, whether the Secretary of State or the council, for the failure to notify them as they should have been notified. As I say, it was accepted between the Secretary of State and the council that the council was to blame, and in due course the council, without any objection on its part, was ordered to pay the costs that had been occasioned by the need to reopen the hearing.
10. There are two means whereby a planning appeal can be dealt with at a hearing. It can sometimes be dealt with on paper, but we are not concerned with that in this case. It can either be a formal inquiry, which usually involves parties being represented, cross-examination of witnesses, and perhaps a fair degree of formality. The alternative is what is known as an informal hearing. It is an inquisitorial process. The inspector in question is responsible for deciding how it should operate, but it is important that all those who are entitled to object should be able to make such objections as they wish to make and, if necessary, develop them. Furthermore, the normal system will involve the inspector enabling objectors to ask questions of witnesses should he think that that is necessary.
11. There is evidence before me from Mr Linscott who is a group manager in the planning inspectorate. What he says is this:

"The Hearing Rules permit the Inspector great discretion in the manner in which they conduct a hearing. It is custom and practice that s/he briefly summarises the parties' cases at the opening and seeks their confirmation that s/he has understood them. S/he will then ask a series of structured questions of each party's witnesses, ensuring that opposing parties are permitted to respond on the answers to those questions. I recently asked a sizeable number of Inspectors whether they follow my approach, which is once a question or a topic is 'on the floor' I allow a debate to take please between the relevant witnesses and/or the witnesses to ask one another question (ie rather than require that all evidence is given 'through' the Inspector). The great majority confirmed that they do. Provided that the Inspector maintains firm control and authority, ensures that interested parties (who are likely not to be experienced either in planning matters [or] participating in public tribunals) are brought properly into the proceedings, and keeps the discussion to the point, that seems to be best practice."

It certainly appears that the inspector, broadly speaking, followed that when conducting the hearings before him.

12. Once the mistake had been identified, the question then arose as to what should be done. It was obviously necessary that there be some form of rehearing, because it was obviously not right that objectors should be met with a decision which was made in their absence, even though they might be able to make their further representations in due course, because it was important that they were able to deal with the matter on the basis of hearing the whole of the evidence, rather than simply bits and pieces.
13. The agent for the appellants, Taylor Wimpey, wrote on 16 May in an email to the planning inspectorate saying this:

"The circumstances of this reconvened Hearing are unusual... We consider it most important that the parameters for the new Hearing are clearly understood by all parties... The intention is to clearly establish the rules to be followed at the reconvened Hearing so that the procedure remains fair to all...

The second paragraph of your letter states that the intention is 'to enable any interested parties to be able to listen to all the evidence and to be given the opportunity to comment at the Hearing'.

...

2. Can the Inspector confirm that the oral evidence presented by both parties at the original Hearing remains part of the evidence on which he will take his decision?"

14. The response to that from the planning inspectorate on 18 May was, so far as material, as follows:

"... it would not be in the interests of openness, fairness and impartiality if the appeal decision in this case was based on proceedings which took place without the public being present. Therefore, in principle, it will be necessary to re-run the Hearing in the same form as the event which took place on 11 and 12 April, and the same agenda will apply. However, the procedure to be adopted will be dependent on the nature and extent of public attendance, and the Inspector will discuss the details with all those present at the start of the resumed event. In common with normal procedure, the main parties should rely on the case provided in their statements, and the Inspector will not expect new material to be put forward."

15. In principle, the approach suggested by the planning inspectorate is not in any way wrong. It clearly would not be proper for oral evidence presented at the original hearing to remain as part of the evidence on which the inspector would take his decision, unless the objectors were appraised of what that evidence was and were not deprived of any proper opportunity to deal with matters which had been raised there.
16. It was decided, and indeed it is to be noted that Mr Linscott confirms this approach, that there was in his view (and in similar circumstances it would remain his view) that the same inspector should deal with the subsequent hearing. It seems to me that that is an approach which the inspectorate ought seriously to reconsider. It is obvious that objectors who have been wrongly deprived of the opportunity of appearing and dealing with the matter at the original hearing will be concerned that matters were raised which they could have dealt with in a different manner had it been dealt with fully at a fresh hearing before them. The whole point of needing a fresh hearing is that it should indeed be a fresh hearing and not in any way dependent upon, or taking account of, what was raised at the unlawful first hearing.
17. It may be that in given circumstances the same inspector is able to deal fairly with all matters. Much may depend upon the facts of the particular case and the procedural irregularity in question. As it happens, with hindsight a lot of time and money would have been avoided had this been dealt with by an entirely fresh inspector. But it must be obvious that there is a real risk that those who are unhappy with the eventual decision that was made will feel that their concerns have not properly been dealt with in circumstances such as these. However, as I say, the mere fact that it was the same inspector does not of itself mean that the further hearing could not be regarded as fair.
18. It seems to me that there can be no doubt that what happened gave the appearance of unfairness. The claimants, together with the councillors who attended, produced statements. In addition, there have recently been produced a number of additional statements from those who would have attended the first hearing had they known about it and who did attend the second. The common theme that runs through these statements is the feeling that the matter was dealt with in a more perfunctory fashion at the second hearing than was desirable. It was their belief that because a number of matters had been dealt with in evidence at the first hearing the inspector was somewhat hurried in his approach, and they felt that their cases had not been listened to and dealt with in a way which they should have been had the matter been dealt with by the inspector from the outset.
19. It may well be that that feeling by the objectors, which is entirely understandable, simply shows the undesirability of having dealt with it in the way in which it was dealt with, and certainly it gives a strong evidence of an appearance of unfairness which I have no doubt existed. However, that does not necessarily mean that they must succeed, because I must be persuaded not only that there was actual unfairness but that that unfairness resulted in prejudice to the objectors. It is, therefore, as Mr Kimblin submits, necessary to see what damage was done to the objectors' cases and whether there were any matters which were dealt with at the first hearing but were not adequately dealt with at the second.
20. We are fortunate in having notes, and very good notes, taken by a representative of those acting for Taylor Wimpey, of the two hearings. Not only are they good notes, but they have the advantage too of legibility. It has been possible, therefore, to see what was dealt with in the first hearing and how it was dealt with, and equally what was dealt with in the second and how it was dealt with. It is also to be noted that the two councillors who objected were taking many of the points which had been raised by the objectors, although not all, and were putting before the inspector many of the points that the objectors themselves would have wished to raise.
21. I asked Ms Graham Paul whether there were any matters which made it clear that there were issues raised which were not dealt with in the same way in the second hearing and she referred me to two. The first related to the fact that the land on which this development is to take place was high quality grade 2 agricultural land. That was a matter which had been raised by a number of objectors. It was dealt with at the second hearing very briefly, and indeed it does not appear that any development of the point was made by any of the objectors. It was not a point, it seems, which either of the councillors essentially relied on. The inspector dealt with it by recognising that albeit it was valuable agricultural land, it was isolated and was in fact adjoined by already developed land. The point at issue is that if agricultural land is valuable, then in deciding where development should take place, prima facie local authorities should look to agricultural land which is not of such high quality. The argument was that there was such land which could have been developed and would have been preferable to this particular site.
22. The second matter that she relies on relates to what is described as the new approach necessitated by the National Planning Policy Framework ("NPPF") which had been published in March 2012. There was no doubt that the land which was allocated for housing purposes by the local plan was insufficient: it should have provided for a five-year supply; it did not. That was a matter which was going to have to be considered when putting into effect the NPPF, the approach of the NPPF being, as is well known, perhaps more in favour of housing development than had previously been the case. I do not think it is necessary to go into further detail on that score. The local authority had to consider with public participation what were the appropriate sites for such development. I am told that at the first hearing there was produced a plan in which I imagine the councillors had indicated possible sites for development which would provide for a five-year supply and not need this particular site.
23. At the subsequent hearing, and indeed this was also said at the first hearing, it was agreed apparently that the emerging plan was at far too early a stage to carry any weight. That conclusion was carried over into the second hearing. It is said that there was no discussion on that issue so far as the objectors were concerned. The point that is made is that that was a wrong approach because it was necessary to bear in mind that the exercise involved would need sites for housing development, and indeed other sorts of development no doubt, to be identified. This, in a way, prejudged that matter. Prematurity was not taken as a specific point, but it is obvious that that argument was one which could have been taken into account.
24. The inspector in his decision stated that it was recognised that development on this site might lead to pressure on the adjoining land to the west but this was to a limited extent. It was a self-contained site. He went on:

"The role of local residents in shaping their environment is recognised in the Framework, and it is understood that a neighbourhood plan is in the course of preparation. However, neither this, nor the development plan documents setting out the allocation of land, have reached a stage where significant weight may be applied to their proposals. In the meantime, there remains a need to provide a continuing supply of residential land."

It is submitted that that is an approach which could have been challenged because, as I say, it was not necessary as at June 2012 for this site specifically to be allocated for development in advance of the general allocation.

25. It may well be, I recognise, that that was not regarded by the inspector as a point which in the end went against the grant of development. Indeed, it is obvious from the limitation of the ground of appeal that otherwise there is no error of law that could be identified in the inspector's decision and no basis for appealing it other than on this one single ground. It is important, in those circumstances, that merely because an error was made and merely because there is an understandable feeling that it was unfair to the objectors, this decision should be quashed. It is only if there was prejudice to the objectors and if it is a reasonable possibility that had the matter been dealt with in the way that it should have been, namely a real de novo hearing, there could have been a different result.
26. Mr Kimblin submits that when one looks at the matter as a whole, none of the objections that the objectors wanted to put forward were disregarded. They were given full opportunity to deal with all the matters that they wished to deal with. It could not be said, looked at objectively, that even though there was this error made that the end result was prejudicial and so unfair to them.
27. It seems to me that the difficulty that lies in the path of both the Secretary of State and Taylor Wimpey is that the starting point has to be a recognition that there was a serious procedural defect; furthermore, that there is a general concern, and a very understandable concern, raised by all the objectors that the second hearing did not appear to them to be as thorough as was desirable. Matters, they say, were dealt with far more concisely and in far quicker time than had been the case on the earlier hearing. Indeed, that is so because the first hearing took a day (when I say hearing, I am referring specifically to the actual hearing in the council offices, I am not referring to the site visit which I appreciate is technically part of the hearing) whereas on the second occasion it was over in half a day which enabled the site visit to take place that afternoon. That, understandably, gives rise to a real concern that matters had been considered and evidence heard on the first occasion and it was not necessary to go over the same ground again on the second occasion. The inspector in his statement says that that is simply not the case; the reason for it being shorter was that the parties presented their cases in a much more succinct fashion.
28. However, it is perhaps worth noting in this regard the statement made by Councillor Mackman, one of the two councillors who attended both hearings. What he says, among other things, is this:

"3. It is my strong belief that the Inspector carried out the second hearing in a rigid fashion that disadvantaged the residents present. He made no attempt to assist the residents in engaging with the issues. In fact, the Inspector concluded the formal hearing in barely half the time of the first appeal hearing despite there being extra people involved. Cllr Ranger and I endeavoured to make points regarding housing supply and numbers and the Local Plan but felt that some of the points being raised by the developer were technical and complicated and would have been difficult for the local residents to comment on without it being explained properly. I can confirm that arguments relating to this that were played out in full at the first appeal hearing were not played out in full at the second hearing."

It may be that perhaps one should not attach a great deal of weight to that because it is disputed by the inspector, and certainly the notes do not indicate that the matters were not permitted to be dealt with; however, it is the perception that is or can be important. He goes on in paragraph 4:

"A particular point that illustrates this is that at the first hearing was discussion on the local residents' preferred areas of development. At a local planning meeting, residents had identified, by placing red and green dots on a map, areas of the town where they would accept development. This plan was produced at the first appeal hearing but not at the second appeal hearing. This was even though local residents tried at the second meeting to make the same point to the Inspector. It would likely have carried more weight and mutual understanding with the plan available."

That is a matter which I have already referred to. But, as it seems to me, it is a matter which must carry some weight because it does show that on the face of it there is some substance in the concerns by the objectors that matters were dealt with in a fashion which appeared to them to be somewhat too expeditious in comparison with what they subsequently learnt had been the position at the first hearing.

29. I have no doubt that not only was there an appearance of unfairness but that there is material which shows that there was indeed unfairness in the way that this was dealt with. One is conscious, of course, of the well-known dictum of Lord Hewart in a case concerning the magistrates' court (not an informal hearing) that not only must justice be done but it must be manifestly seen to be done. That is an approach which, in my view, is equally valid when dealing with hearings such as this. I appreciate of course that this is not the same as a court hearing, nor is it as formal as a formal hearing. However, these individuals would have been parties to a formal hearing and are treated as statutorily entitled to be heard at an informal hearing.
30. So far as the formal hearing is concerned, that means that there is compliance with Article 6 of the European Convention on Human Rights as has been decided by the House of Lords. Albeit it is informal, nonetheless it is, in my view, incumbent upon an inspector that he ensures that there is fairness to all who are entitled to appear at such a hearing. Of course it is not only for the inspector to ensure that the hearing before him is fair but for the inspectorate not to produce a situation which, despite everything an inspector could do, can properly be regarded as unfair. But again, that is not the end of the story, because it is only if there was prejudice to the objectors in the ultimate result that it would be appropriate to quash the decision.
31. It is, I think, clear that if the decision was inevitably going to be the same were it to be quashed and reheard, it would be inappropriate to grant relief. But that, in my judgment, is not something that can be said of this decision, because if the decision is quashed the appeal will be reheard by a new inspector and will be a completely fresh hearing. Of course the result may well be the same, but at least the objectors will know that they have had a full and proper consideration in a proper fashion of their objections.
32. It is apparent from all the material that it is not inevitable that an inspector would reach the same decision. After all, experienced members of a planning committee clearly took the view that this particular development was not one which should take place. Equally, an inspector dealing with land on the other side of the road had certainly before the NPPF decided that the objections there outweighed the points in favour of the development. True it is that a subsequent application was allowed, but that was essentially because the matter that gave rise to the original refusal was dealt with by the developers and so that particular basis for refusal disappeared; and of course, one application is not identical to another and different considerations clearly might well apply to that.
33. It seems to me that this is a somewhat finely balanced decision, because I do recognise the force of Mr Kimblin's submissions that, as I say, the objectors at the second hearing were not precluded in any way from raising all matters that they wished to raise. Nonetheless there can be no doubt that the inspector (and he says so in his appeal decision) had regard to the hearing held not only on 11 April but also on 7 June. He incidentally differentiates between the hearing and the site visit, whatever may be the technical position. What weight he may have attached to evidence that was given before him on the previous occasion, which was not dealt with directly by the objectors nor given in their presence, it is not possible to identify with any certainty. But the concern of the objectors is the obvious one that there may have been matters that he relied on which, had they been present, they might have been able to deal with in a different way from that which the councillors raised or from that which was dealt with below. I have already dealt with two matters that Ms Graham Paul specifically relies on which could have been considered in a somewhat different fashion.
34. There is certainly no guarantee that a fresh decision will be favourable to the objectors. But it seems to me that the approach that I ought to adopt in deciding whether there has been prejudice is whether it is reasonably possible that there might be a different decision made; putting it the other way around, that where there is unfairness it is only if that unfairness could not produce a situation where a different result would, if the matter were reconsidered, result that it should prevail.
35. In all the circumstances, for the reasons I have given, I take the view on balance that this is a case in which the claimant should succeed and that this decision should accordingly be quashed.
36. What is the costs situation? You have managed to get a PCO.
37. MS GRAHAM PAUL: Yes, my Lord. Just before I turn to that, for your transcript writer I think I managed to read the word that was covered by the numbering on the page in Councillor Mackman's statement. I am pretty sure it is "engaging".
38. MR JUSTICE COLLINS: It could well be. "856" is stamped right across it.
39. MS GRAHAM PAUL: If that assists for the judgment rather than having a blank. Also just for the judgment to note my name, which I think is on the piece of paper.
40. MR JUSTICE COLLINS: I do beg your pardon.
41. MS GRAHAM PAUL: Annabel is my first name, which may be where your Lordship (Inaudible). So those were just a couple of matters for the transcript writer.
42. On costs, there is a protective costs order that was made by the deputy judge at the first hearing into this matter.
43. MR JUSTICE COLLINS: Are you on a no win, no fee?
44. MS GRAHAM PAUL: It is a partial no win, no fee, I understand. The point is a simple point that is made that the limit on the reciprocal cap of £35,000 was obviously made without any regard to there being a hearing in the Court of Appeal.
45. MR JUSTICE COLLINS: What happened in the Court of Appeal? They have not yet given judgment, so presumably they have not dealt with costs, or have they?
46. MS GRAHAM PAUL: For convenience the Treasury Solicitor and the claimants agreed that the PCO would remain in force with the Court of Appeal but subject to needing to vary it if we were successful later.
47. MR JUSTICE COLLINS: But has the Court of Appeal given any views on what should be the costs order before it?
48. MS GRAHAM PAUL: No, because they have not been asked to do that.
49. MR JUSTICE COLLINS: No, and they have not given judgment yet.
50. MS GRAHAM PAUL: They have not given judgment yet, but they will make no order for costs in favour of the claimant because it will simply be dealt with in terms of the PCO to go on into this hearing. So there is no separate costs order being made by the Court of Appeal.
51. MR JUSTICE COLLINS: It is Taylor Wimpey who are going to pay those costs, I presume?
52. MS GRAHAM PAUL: No, Taylor Wimpey have no involvement. It was only the Secretary of State. So that was why it has all been in the PCO, my Lord.
53. MR JUSTICE COLLINS: I am sorry, I had not appreciated that.
54. MS GRAHAM PAUL: So because of that, whilst I wholly recognise my learned friend Mr Whale's point that Taylor Wimpey should not be responsible for any increase in the claimant's ability to recover costs --
55. MR JUSTICE COLLINS: I think so far as costs of today of this hearing are concerned, I am not sure that Taylor Wimpey come into the picture, do they?
56. MS GRAHAM PAUL: No. So I make no point about Taylor Wimpey. It is just about the Secretary of State.
57. MR JUSTICE COLLINS: If they had won, they might have tried to get round Bolton but I doubt if they would have succeeded.
58. MS GRAHAM PAUL: I doubt it from my discussions with my learned friend. But the point is simply that the claimant has incurred a modest sum of just under £5,000 in addition for the Court of Appeal proceedings.
59. MR JUSTICE COLLINS: You say that should be not be taken into account in deciding the costs of today? When I say not to be taken into account, I mean you would hope the Court of Appeal would give you your costs.
60. MS GRAHAM PAUL: The Court of Appeal have not been asked to do that because the PCO --
61. MR JUSTICE COLLINS: Prima facie you should be entitled to the costs before the Court of Appeal, should you not?
62. Mr Kimblin, that would normally follow, would it not?
63. MR KIMBLIN: My Lord, yes, subject to this position: at the outset of the hearing in the Court of Appeal, the Court of Appeal was informed that the parties were content for the PCO limits on both sides to remain in place as set by the learned deputy judge.
64. MR JUSTICE COLLINS: What were the limits set by the judge?
65. MR KIMBLIN: I think they were £10,000 in respect of the claimant's exposure and £35,000 inclusive of VAT.
66. MR JUSTICE COLLINS: What actually are your costs? Do you have a schedule?
67. MS GRAHAM PAUL: Yes, so the total on this, without uplift, is a tiny bit over £40,000. So it is that additional --
68. MR JUSTICE COLLINS: So the Court of Appeal £5,000 makes all the difference.
69. MS GRAHAM PAUL: It does to the claimants' lawyer's ability to recover for the work done in the Court of Appeal.
70. MR JUSTICE COLLINS: As you know, it is my practice, and I think this practice is obviously not going to be so material in the future, but where there is no win, no fee I have routinely said there will be no uplift if there is a PCO, which I think is frankly only fair and I think most of my brethren take the same view.
71. MS GRAHAM PAUL: That is without uplift, my Lord, and indeed I do believe it was a term of the PCO that there be no recovery for an uplift.
72. MR JUSTICE COLLINS: What do you want me to do? Do you want me to say I had better wait and see what the Court of Appeal decide to do?
73. MR KIMBLIN: Yes. The situation in the Court of Appeal is that there is an agreed position on the PCO. If the claimants, there respondents, wanted to adjust that then that is a matter for the Court of Appeal. The position here is less than straightforward having regard to both the Court of Appeal matter and what is said about the Court of Appeal here. My Lord, may I suggest 1) that we await the Court of Appeal dealing with costs and 2) if an agreement is not reached that we trouble my Lord in writing.
74. MR JUSTICE COLLINS: I think probably that is sensible, is it not, Ms Graham Paul?
75. MS GRAHAM PAUL: We can approach the Court of Appeal.
76. MR JUSTICE COLLINS: Have you had any indication as to when they are likely to give their judgment?
77. MS GRAHAM PAUL: No.
78. MR JUSTICE COLLINS: You will not get me, I am afraid, because I am going away on the 13th of this month and I doubt if the Court of Appeal will decide it before then. I am back at the end of August, beginning of September, but I do not think that delay is going to be fatal, is it?
79. MS GRAHAM PAUL: Presumably if necessary someone else in your Lordship's absence --
80. MR JUSTICE COLLINS: It is not as if your solicitors are going to go down the drain without some payment, is it?
81. MS GRAHAM PAUL: No, it is simply that --
82. MR JUSTICE COLLINS: I could make an order that some payment is made in advance if you insisted, but I do not really think that is necessary, is it?
83. MS GRAHAM PAUL: It would be useful, my Lord, to have an indication that in principle the claimants should be able to recover their costs in the Court of Appeal, whether that comes within the PCO --
84. MR JUSTICE COLLINS: I do not think I ought to say anything which prejudges what the Court of Appeal considers to be the right approach. If I did I do not doubt I should get into some trouble.
85. MS GRAHAM PAUL: My Lord, we will address that matter to the Court of Appeal and if they come back and say the PCO remains as a High Court (Inaudible) we will make further submissions to you.
86. MR JUSTICE COLLINS: You will seek to persuade them that the £5,000 is crucial and that therefore the PCO should be extended because the Secretary of State chose wrongly to appeal. I say wrongly; I mean because --
87. MS GRAHAM PAUL: Unsuccessfully.
88. MR JUSTICE COLLINS: Yes, unsuccessfully is more to the point. I suppose it is a good thing that I decided this before the Court of Appeal because if any of the members of the court had been moved to say anything on the merits, at least I am not influenced by anything.
89. MS GRAHAM PAUL: Thank you, my Lord.
90. MR JUSTICE COLLINS: All right. Then I will put over the question of costs. Perhaps you could just make sure the right order is prepared.
91. Yes, Mr Whale.
92. MR WHALE: My Lord, can I deal with a couple of transcript points, please.
93. MR JUSTICE COLLINS: Yes, of course.
94. MR WHALE: Forgive me.
95. MR JUSTICE COLLINS: No, no, I am most grateful because in an extemporary judgment one inevitably makes the odd mistake.
96. MR WHALE: I notice a couple of references to Taylor Woodrow rather than Taylor Wimpey, so I am grateful if that could be amended. The second point I ought to mention amounts to a possible appeal. It is an interesting one and it is because of the parallel Court of Appeal procedure. So can I just set out the various options first of all and why the issue arises.
97. MR JUSTICE COLLINS: Incidentally, I am not sure -- as costs have to be deferred, would it not be sensible to ask you to put in writing, if you have applications for leave to appeal, which can be then put to Ms Graham Paul and answers can be dealt with then.
98. MR WHALE: My Lord, that is actually what I was thinking of, but for this reason, my Lord, lest any explanation is needed. Obviously I was not at the Court of Appeal hearing and my clients played no part in it.
99. MR JUSTICE COLLINS: I confess that I had misunderstood that.
100. MR WHALE: Not at all. But one possible permutation, I say no more than possible, once the reasons having been promulgated the Secretary of State might be want to apply for permission to appeal to the Supreme Court because it is a very interesting issue as to whether a new ground can be substituted after the six weeks are up.
101. MR JUSTICE COLLINS: Remind me, the six weeks: that carries with it, does it not, a discretion, or is there no discretion?
102. MR WHALE: That is the issue, really, my Lord.
103. MR JUSTICE COLLINS: You mean Parliament has tried to avoid discretion, has it?
104. MR KIMBLIN: My Lord, the point is that 17.4 in the Rules deals with those statutes which have a time limit, a limitation, but on their face allow for a period of amendment. Of course 288 does not include any such provision. So that was the debate.
105. MR JUSTICE COLLINS: No, but in this field you have to bring proceedings within, whatever it be, six weeks, but there is always, and I think the same applies to the six weeks, does it not, a discretion to extend time?
106. MR KIMBLIN: No. In 289 there is; not in 288. Absolute limit.
107. MR JUSTICE COLLINS: Parliament appears not to have given a discretion.
108. MR KIMBLIN: That is right. So that is the debate.
109. MR JUSTICE COLLINS: Which on one view is clearly unreasonable. I think it is manifestly unreasonable, but the fact that Parliament has not included that does not preclude the possibility. Funnily enough, I have reserved judgment in a matter which was an application for a village green, and you know that there is a five-year time limit where the cessation is said to have occurred before -- I forget the exact day, it was 2007, I think. Question: if you apply towards the end of the limitation period but you failed to put everything you should in the application which has to be in a particular form, but the authority says that as there is power to allow the matter not to be rejected immediately but to allow it to be put in proper form, but by the time it is put in proper form the five years has expired, does the amendment date back or are you lumbered by the limitation?
110. MR KIMBLIN: The reference back points and the Limitation Act.
111. MR JUSTICE COLLINS: It is exactly the same sort of point. But there we are. Maybe I will be helped by that.
112. MR WHALE: Can I just make one or two suggestions? I just float these.
113. MR JUSTICE COLLINS: It seems to me, Mr Whale, sorry to interrupt you, but in the light of what you tell me it is probably sensible to wait in any event until the Court of Appeal has decided before reaching a final decision as to what you want to do.
114. MR WHALE: I think so, my Lord, so that really means, if I might suggest it, that although you have given your judgment that the order is not formally drawn up and sealed until after the Court of Appeal has made its order. Then what I had in mind was if you possibly either give my clients 21 days from that order to reply to you for leave to appeal --
115. MR JUSTICE COLLINS: I assume that the Court of Appeal will want to give its judgment this term before the end of July.
116. MR WHALE: I assume so too, and what it might do, of course, is it itself might grant the Secretary of State permission to appeal.
117. MR JUSTICE COLLINS: Who knows. It depends whether the Secretary of State asks for it. He may decide not to.
118. MR WHALE: You can see the quandary, my Lord. So if you are prepared to hold off the sealing of the order until after the Court of Appeal is over, that will probably deal with these issues, frankly, because then we will be able to see what the Secretary of State is going to do or not do and then we can make representations.
119. MR JUSTICE COLLINS: I think there is something to be said for that, because obviously time for appeal, et cetera, runs from the date of the order. So I think probably it is better, subject to Ms Graham Paul taking a contrary view, I think it probably is better to wait. As I say, I shall not be here again until the end of August. In fact, I am sitting here in the last week of August and the first two in September.
120. MR WHALE: Just as a fail-safe, if your appointments, if you like, do not coincide with our desires, perhaps we could incorporate into the order that any appellant's notice is to be filed with the Appeal Court within 21 days of your order.
121. MR JUSTICE COLLINS: Let us see, shall we? All of this you can raise when you know what the Court of Appeal has decided and you have also taken instructions and know what your clients, both of you, want to do and whether you do want to take my decision further.
122. MR WHALE: I am grateful for that.
123. MR JUSTICE COLLINS: Does this not show how it would have been so much better, with hindsight, to have had a new inspector? It would save an awful lot of time and money.
124. MR WHALE: On the six weeks, of course, it is today that the new six weeks for JR challenge to planning cases comes in, so you will be grappling with that, no doubt, in the weeks ahead.
125. MR JUSTICE COLLINS: Frankly, I have always thought that that is a very desirable provision, provided that there is the possibility of discretion to extend, which I think there is.
126. MR WHALE: I think there must be (Inaudible) judicial review.
127. MR JUSTICE COLLINS: Normally there would be, but why they have not put it on the 288. I suspect it may be an oversight, but there we are.
128. MR KIMBLIN: My Lord, if I may say so on behalf of the Secretary of State, I am quite content with that approach to the orders. So from my point of view I am very happy.
129. MR JUSTICE COLLINS: Yes, I think it would be sensible, do you not, Ms Graham Paul?
130. MS GRAHAM PAUL: Yes, I agree.
131. MR JUSTICE COLLINS: After all, your clients are not in any way adversely affected because so long as this remains in limbo, no development can take place. I know this is only an outline permission, but nonetheless no further development of the outline permission, for want of a better word, can take place.
132. MS GRAHAM PAUL: I understand my learned friend Mr Whale's point and why it is important for him. I just simply want to know what I should do now in terms of drafting.
133. MR JUSTICE COLLINS: I do not think you need do anything particularly. We will simply say that no court order need be made at the moment. We will wait until the Court of Appeal and until you have been able to make any representations that you want to make either in writing or, if the worse comes to the worst I suppose, coming back before me sometime perhaps at the beginning of September.
134. MR KIMBLIN: My Lord, I am sure we are all very grateful. Thank you very much.