IN THE HIGH COURT OF JUSTICEQUEEN’S BENCH DIVISIONCROWN OFFICE LISTRoyal Courts of JusticeStrandLondon WC2
Thursday 7th December 2000
B e f o r e:SIR RICHARD TUCKERSitting as a Deputy Judge- – – – – -THE QUEEN ON THE APPLICATION OFBARKER-v-WAVERLEY BOROUGH COUNCIL- – – – – -(Computer Aided Transcript of Smith Bernal Reporting Limited,190 Fleet Street, London EC4A 2AGTelephone No: 020 7421 4040 Fax No: 020 7404 1424Official Shorthand Writers to the Court)- – – – – -MR C LOCKHART-MUMMERY QC and MR D KOLINSKEY (instructed by Messrs Leigh Day & Co., London EC1) appeared on behalf of the ClaimantsMR N McCLEOD QC and MISS C PATRY (instructed by Messrs Rees & Freres, London SW1) appeared on behalf of the First DefendantMR C KATKOWSKY QC and MR D FORSDICK (instructed by Messrs Sharpe Pritchard, London WC1) appeared on behalf of the Second Defendant
– – – – – -J U D G M E N T(As Approved by the Court)- – – – – –
1. THE DEPUTY JUDGE: This application for judicial review relates to Dunsfold Aerodrome which is located within open countryside in Surrey and covers 528 acres. The land was formerly used for agricultural purposes. It became an aerodrome during the war when it was requisitioned and an emergency airfield was built by the Canadian Air Force. The claimants, who are a group of local residents of the villages of Dunsfold and Alfold, which are adjacent to the aerodrome, challenge the decision of the defendants, the local planning authority, to vary certain conditions of the planning permission governing the present use of the aerodrome. The claimants want to see the land restored to its original use, agriculture.
2. The site has a lengthy planning history. In 1951 Hawker Aircraft Limited were interested in acquiring the site and using it for the purpose of erection, repair and flight testing of aircraft. They applied for a temporary permission to do so, “say seven years”. On 13th April 1951 approval was granted for that development. The approval made no mention of the proposed temporary nature of the development. However any doubts about that were removed when, on 17th November 1954, a second permission was granted for the development for the erection of jet pipe mufflers and extension of existing hangers, for a temporary period of 10 years, subject to the buildings being removed from the site on the expiration of this permission.
3. That permission was subsumed by a further permission granted on 13th June 1958 extending the period to 30th April 1965. There were other consents granted for further development within the same period but subject to the use thereby permitted being discontinued and the land being reinstated to its original use on the expiration of the permit.
4. In February 1965 there was another comprehensive permission. It had the effect of extending the temporary use for a further period, this time of 20 years, expiring on 30th April 1985. The primary permitted use remained the same, ie use for the erection, repair and flight testing of aircraft, but there was a restriction to not more than 650 personnel. This was subject to a condition that the use should be discontinued upon the expiration of the permitted period and that the land should be restored to agricultural use.
5. There were numerous other permissions between 1967 and 1980. They were all expressed as being temporary and contained conditions that the land was to be reinstated to its original use. During this period British Aerospace had become the occupiers and operators of the aerodrome instead of Hawkers and at some stage BAe became the freehold owners of the site. So it was that in October 1980 permission was granted to BAe to continue to use the aerodrome for the same purposes as before with an extension until 30th April 2000.
6. This permission was subject to a number of conditions, of which I need only mention the first and the second.
“SCHEDULE OF CONDITIONS1. The permission hereby granted shall be for a temporary period only, expiring on 30th April 2000, by which date the use shall have been discontinued.
2. The permission shall subsist for the benefit of the applicant, British Aerospace, only and for no other organisation or body, and on the cessation of use of the aerodrome and associated buildings by them, this permission shall cease to have effect and all the buildings and installations including runways, taxiways etc, shall be demolished, equipment and materials removed and the site left in a clean and tidy condition to the reasonable satisfaction of the local planning authority. Within a period of two years from the cessation of the use hereby permitted, all the land shall be returned to agriculture and all footpaths and bridleways which crossed the aerodrome prior to the requisition of the land shall be reinstated to the satisfaction of the local planning authority.”
7. Reasons were given for the imposition of these conditions. I need only mention the second:
“In order that the permission shall be for the benefit of British Aerospace only, in the national interest and for no other person or body and to ensure that the site shall revert to agriculture at the cessation of the temporary period or any additional period in the interests of proper planning control.”8. On 27th March 1997 condition 1 was varied so as to extend the period to what was described as a “limited period only” expiring on 30th April 2020, on or before which date the uses shall be discontinued and the site reinstated to its former condition unless a further planning permission is granted before the expiration of such a period.
9. The reason given for the imposition of conditions was:
1. To accord with the terms of the application and to ensure that the use of the land by the applicants can be reviewed by the Local Planning Authority at the appropriate time in the light of the circumstances then prevailing.10. Finally, I come to the decision whereby on 13th November 1998 the defendants permitted the removal of condition 1 imposed in 1980 and granted permission to BAe for the use of the aerodrome for the same purpose as before but on a permanent basis. This permission too was subject to certain conditions, the first of which is as follows:
“The permission shall subsist for the benefit of the applicant, British Aerospace, only and for no other organisation or body, and on the cessation of use of the aerodrome and associated buildings by them, this permission shall cease to have effect and all the buildings and installations including runways, taxiways etc., shall be demolished, equipment and materials removed and the site left in a clean and tidy condition to the reasonable satisfaction of the Local Planning Authority. Within a period of two years from the cessation of the use hereby permitted, all the land shall be returned to agriculture and all footpaths and bridleways which crossed the aerodrome prior to the requisition of the land shall be reinstated to the satisfaction of the Local Planning Authority.”11. Therefore this condition contained three components.
12. First, the permission was personal only to BAe.
13. Second, on the cessation of use the permission would cease to have effect and all buildings and equipments were to be demolished and removed.
14. Third, within two years the land shall be returned to agriculture.
15. It is the decision to vary this condition which is under challenge. When BAe applied for removal of the 1980 condition their advisors stated that it was in order to plan for their future at Dunsfold on a permanent basis:
“The plan future of BAe has far reaching consequences not only to the future improvement and employment to Waverley but to Surrey and wider afield.”16. However within a few months of making that application on 24th June 1999, BAe announced the closure of the aerodrome at the end of the year 2000. Mr Lockhart Mummery QC, on behalf of the claimants, submits that there was a clear consistency, recognised by everyone at the time, between the grant of a permanent permission personal to BAe and restoration of the land to its former use. So if the exceptional user were to go then the land would be restored. The then chairman of the planning committee confirmed in his comments to the committee that the conditions were sustainable – by which I take it to mean that they were legally valid and effective. However it was submitted that BAe was seeking a permanent permission on a clear understanding, mutually with the local planning authority and the public, that restoration of the land was necessary, valid and appropriate.
17. On 11th November 1999 BAe applied for a lawful development certificate (LDC) in order that the land could be used by parties other than BAe without being subject to any of the conditions set out in the 1998 permission.
18. A week later BAe submitted an application to vary the conditions so as to enable the aerodrome to be occupied by other persons and companies than BAe. The defendants considered the position and took counsel’s advice on the status of the various permissions to which I have referred, and the conditions attached thereto. According to a Briefing Note circulated on 25th November 1999, the defendants, in the light of counsel’s opinion, took the view that the effect of the 1951 decision was to grant permission for the permanent use of the aerodrome for the stated purposes, that subsequently imposed conditions had no force, and that BAe or any subsequent owner was entitled to use the aerodrome for the permitted purposes.
19. Mr Lockhart Mummery describes this as a dramatic somersault by the defendants which was demonstrably wrong.
20. On 2nd February 2000 BAe withdraw their application for an LDC, so that was the end of that particular matter.
21. However, BAe had meanwhile applied for the discharge of the conditions contained in the 1998 permission. Their advisors informed the defendants in a letter dated 29th September 1999 that BAe were endeavouring to find a buyer for the airfield so that the manufacturing base and the employment it generated could be maintained, but that the terms of the conditions effectively prevented other manufactures operating from the aerodrome.
22. The letter referred to an opinion which had been obtained from leading counsel contending that condition 1 was invalid in law as being ultra vires. Reference was made to the decision of the House of Lords in Newbury District Council v Secretary of State for the Environment  AC 578. I shall have to return to that case in due course. Mr Lockhart Mummery submits that it has no application to the present case.
23. The defendants commissioned an impact study of the closure of BAe Dunsfold. This examined alternative options for the re-use of the site. It was considered that agricultural use as a single use option was unlikely. I accept that these matters were considered by the defendants over many months and after full consultations with interested parties.
24. Officers reported to the appropriate committee and sub-committee. They said it should be assumed that the conditions were extant and controlled the activities on the aerodrome site. They noted that the defendants had in the past recognised that the planning circumstances were exceptional and that temporary planning permissions had been granted which would normally have been regarded as inappropriate development within the countryside. On the other hand they later stated that “the view may be taken that the grant of permanent permission (personal to BAe) is inconsistent with a requirement for the site to return to agriculture.” Mr Lockhart Mummery justifiably submits that this is a baffling observation which is contrary to what was said years ago. The officers concluded that the retention of the conditions could not be sustained.
25. The sub-committee which considered the matter does not appear to have kept any minutes of its deliberations, though there is a reference to them in the report. The sub-committee considered that it was appropriate to allow the removal of the requirement to return the site to agriculture and the requirement that the use be personal to BAe.
26. At the heart of the claimants’ challenge is the fact that the report failed to address the position that would arise if no aircraft testing use materialised, or if such a user bought the land and then closed down. The defendants would have released BAe from any restoration obligation and would have no recourse against BAe or their successors on the site. This is how the concern was expressed in a letter written by Dunsfold Parish Council to the defendants on 4th April 2000. The Parish Council had obtained an advice from Mr Lockhart Mummery which they forwarded to the defendants referring to the fact that “the abandonment of the long-held objective to revert to agriculture understandably causes widespread concern in local area. Since the matter appears not to have been considered, one can glean no reasons for the omission.”
27. By this time the claimants had formed their own association and were corresponding with the defendants, having commenced the present proceedings for judicial review. They asked whether the defendants had any defence to their application. On 18th July 2000 the defendants wrote saying it was not possible to let the claimants know of any defence “until such time as detailed advice has been received.”
28. I gave leave to the claimants to amend their form 86A and argue new grounds, without any objection from the other parties.
29. The claimants now make three submissions on the following matters:
30. 1. The legality or validity of the reinstatement condition.
31. 2. The absence of reasoning and rationality.
32. 3. The claimants’ legitimate expectation.
34. The claimants accept that in order to be a lawful condition it must pass the requirements set out in Newbury Borough Council to which I earlier referred, namely:
35. 1. It must be imposed for a planning purpose.
36. 2. It must be fairly and reasonably related to the development permitted.
37. 3. It must not be so unreasonable that no reasonable planning authority could have imposed it.
38. In Newbury the House of Lords considered that a condition imposed on a planning permission for a change of use of existing buildings which are themselves permanently permitted, requiring the removal of those buildings, could only be justified in exceptional circumstances. That is not the position in the present case where the buildings and structures have always been regarded as temporary and which since the 1950s have been subject to a reinstatement requirement.
39. In my opinion it is not necessary to look for exceptional circumstances in order to validate the condition in this case. However, if it were necessary to do so they could be found in abundance, having regard to the special circumstances in which this aerodrome was permitted to be operated in the heart of the countryside for reasons of national security.
40. Further, this question is not simply one of the weight to be attached to the existence of this condition, as appears to be the view of Mr Wyborn, the defendant’s Area Planning Officer. The issue is a legal one – a matter of law – whether the condition is valid or not. Not whether the condition is of “dubious validity” but the stark issue whether it is valid or not.
41. Mr Forsdick on behalf of BAe refers me to passages in the second statement of Mr Wyborn which in turn refers to the reports to the sub-committee and committee which it is said “highlight the uncertainty of the legality of the condition and to the fact that it was thought that two QC’s specialising in planning law had given conflicting opinions”. One of these was Mr Lockhart Mummery and he assures me he was not then advising on the validity of condition 1. Mr Wyborn continues in these words:
“The planning analysis concludes that the conditions cannot be sustained from a planning point of view and goes on to recommend replacement conditions.”42. The expression “cannot be sustained” is one that crops up on several occasions during the discussions on this problem – see for example the notes of the sub-committee discussion on 5th April. Mr Wyborn is quoted as using this expression, or ones akin to it, at pages 1, 3, 6 and 7. I take the words “cannot be sustained” or “unsustainable” to mean in this context “cannot be supported on planning merits”, or possibly invalid or illegal for that reason.
43. Mr McCleod QC for the defendants submits that factually there was uncertainty as to the validity of the condition and that there was good reason for this having regard to what were perceived to be conflicting opinions of leading counsel. The only means of resolving this would have been to seek a declaration from the court which would have resulted in further delay. Mr McCleod submits that there were clear planning reasons why the defendants could and did grant permission.
44. The argument against the claimants seems to be that circumstances now are very different to what they were in the 1950s: the use of this land has been permitted now for over half a century; that use has now become established; in 1998 BAe were granted permanent permission; it is no longer justifiable to impose removal restrictions; there is nothing which by 1998 made the situation an exceptional one, and there is clearly an argument that condition 1 was unlawful when it was imposed. That is the argument set against the claimants in summary.
45. With that argument I disagree. I can see nothing unlawful about the imposition of the condition. The condition was then, and has remained, lawful and, if I must use the word, sustainable. The condition was considered necessary between the 1950s and 1998 and there is in my view no justification for saying it is not necessary now. The only attempt to suggest that it is not appears to be based on commercial expediency. These buildings and this use of the land was permitted because of wartime emergency and no doubt because of the Cold War which followed. They would not have been permitted unless they were to be discontinued and removed when national security considerations no longer called for their continued use.
46. However, it is said that the defendants and BAe do not need to go so far as to argue that the condition is or was unlawful. It is submitted that in examining the legality of the condition I should not go beyond the reports to the committees and that those reports are clear – the officers thought that there were exceptional circumstances which rendered the condition unsustainable. As I have endeavoured to make clear, I disagree. There is nothing now and there was nothing in 1998 which renders the condition unsustainable.
47. In my judgment the requirements to remove buildings, clear the site and restore the land to agriculture were imposed for a planning purpose and continue to serve a planning purpose. They fairly and reasonably relate to a development both when imposed and for so long as the permitted use continues and they cannot be said to be Wednesbury unreasonable.
49. The claimants submission under this head is well set out at paragraph 41 of an amended form 86A. There is said to be an illogicality in the reasoning of the officers reports which reads as follows. Sub-paragraph (f):
“The granting of permission in 1998 acknowledged that if the activities were to continue by British Aerospace in a similar way to the past activities, then the continued use would be acceptable. If the grant of permanent consent for British Aerospace was acceptable in 1998 then it could be argued that the grant of permanent consent for the same activities by a different occupier, with the same or lesser impacts on the environment, is in itself no more harmful.”50. It then continues:
“Consequently, the view may be taken that the grant of planning permission (personal to BAe) is inconsistent with a requirement for the site to return to agriculture.”51. The claimants submit that the final sentence does not follow from the preceding two sentences. A permanent personal condition provides certainty to the operator of the aerodrome whilst the site is being used within the permitted use. The reversion to agriculture becomes particularly relevant if the permitted use is no longer required. The two conditions are thus compatible.
52. The claimants say that the view contained in this report is baffling and is contrary to what had been said a year ago. It is submitted that, subject to one caveat, no logical basis can be found for not retaining the requirement to reinstate as an option for controlling this site in the future. The caveat relates to the recognition that options for employment must be kept open. The claimants do not raise any attack as a matter of law on the release of the personal element of the condition.
53. The defendants submit that there was a clear and rational basis for not requiring the obligation to reinstate the land to agricultural use, which is clearly evident from the report and the debate. Thus it is said the site has been a substantial commercial site for the last 50 years and there were a variety of development plan policies which sought to encourage and maintain business activities in the area. There was difficulty in selling the site if subject to the present restraints. There was further difficulty in envisaging how, in the present state of agriculture, a suitable and viable agricultural use could be identified. The claimants acknowledge that actual reversion of the site to agriculture may not be appropriate, as there may not be local demand for agricultural use. However, they contend that the defendants could and should consider appropriate rural restraint uses for the site consistent with policies of the local plan applicable to countryside beyond the Green Belt. Woodland use is one example. This is a large area, only two or three per cent of which is covered by buildings. There are plainly many options for its use.
54. The defendants submit that there was no rationality void as suggested by the claimants and in any event the observations made at paragraph (f) of the report were only some of the large number of factors which the defendants took into account.
55. On behalf of BAe, Mr Forsdick submits that when read fairly and as a whole the report to which I have referred placed proper emphasis on the planning merits of the application and that the proposals were acceptable in planning terms. Mr Forsdick says that it was a question for the defendants whether it was necessary to impose a restoration condition and that they were justified in removing it as a matter of planning judgment to allow effective marketing for its existing acceptable use.
56. Mr Forsdick relies upon the test of irrationality adopted by the Court of Appeal in R v Ministry of Defence ex parte Smith (1996) 1 AER 257 and cites from the judgment of Sir Thomas Bingham MR (as he then was) at page 263 under the cross heading Irrationality – The Test:
“Mr David Pannick QC (who represented three of the appellants, and whose arguments were adopted by the fourth) submitted that the court should adopt the following approach to the issue of irrationality:’The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker. But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important. The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.’
This submission is in my judgment an accurate distillation of the principles laid down in [the cases].”
57. Mr Forsdick asks whether the decision not to keep the agriculture reinstatement condition is beyond the range of decisions open to a reasonable decision maker, and submits that this decision is “miles away”, as he puts it, from irrationality, given that the condition could only be imposed in certain circumstances.
58. I disagree. In my judgment having regard to the history of this site; to the circumstances in which it was first taken over; to the position which it occupies in open countryside, and to the many years during which the condition has been imposed, it is now unreasonable for it to be removed and so unreasonable as to amount to an irrational decision within Wednesbury principles.
59. Legitimate Expectation.
60. The claimants contend that they have a legitimate expectation that if the aerodrome is no longer used by BAe, or I think they would accept by any similar occupier, for the assembly, repair and flight testing of aircraft in the national interest, the buildings and installations will be removed, site cleared and the land returned to agriculture.
61. The defendants, or at least their reporting officers, appear to recognise that the claimants do have such expectations based on the control which has been exercised on the site, and the legitimate expectations that future control will allow for similar consideration to be given to the avoidance of adverse environmental impact. However, Mr McCleod does not accept that it is a legitimate expectation in the sense that that phrase has been properly understood by the courts. Mr McCleod submits that the only legitimate expectation that has been recognised is that the defendants will give similar consideration to controlling the future use of the aerodrome so as to avoid adverse environmental impact. However he submits that this is no more than the defendants are required to do as a planning authority, applying the relevant statutory provisions, and that it is not a freestanding and independent right to expect that the use of the aerodrome will not in any circumstances be intensified even if it causes detriment.
62. My attention has been invited to the decisions of the Court of Appeal in two cases: R v North and East Devon Health Authority ex parte Coughlan  2 WLR 622 and R v Devon County Council ex parte Baker  1 AER 73, and the passages in the judgments of Lord Woolf MR (as he then was) and Lord Justice Simon Brown in each of those cases respectively. Without disrespect to the judgment of Lord Justice Simon Brown I think I need only cite the judgment of the Master of the Rolls as the more recent and in my judgment more authoritative. What Lord Woolf says is this at page 645:
“But what was their legitimate expectation? Where there is a dispute as to this, the dispute has to be determined by the court, as happened in In re Findlay. This can involve a detailed examination of the precise terms of the promise or representation made, the circumstances in which the promise was made and the nature of the statutory or other discretion.There are at least three possible outcomes [of which I need only examine the first and the last]. (a) The court may decide that the public authority is only required to bear in mind its previous policy or other representation, giving it the weight it thinks right, but no more, before deciding whether to change course. Here the court is confined to reviewing the decision on Wednesbury grounds. [I interpose to say that it is into this category, according to the defendants, that the claimants come] …
(c) Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy. [I interpose to say that it is into this category that the claimants say they come].
… In the case of the first [category], the court is restricted to reviewing the decision on conventional grounds. The test will be rationality and whether the public body has given proper weight to the implications of not fulfilling the promise… In the case of the third, the court has when necessary to determine whether there is a sufficient overriding interest to justify a departure from what has been previously promised.”
63. If it is necessary for me to decide into which category the claimants fall, in my judgment the claimants are right in submitting that their case falls within the third category identified by the learned Master of the Rolls. Accordingly it is for me to determine whether there is a sufficient overriding interest to justify departure from what has been previously promised.
64. Taking into account all considerations in this case my conclusion is No, there is no such overriding interest. What has been previously promised over many years should be adhered to. The claimants have been led to believe over the years that in due course this land will revert to its original use. That belief has to a large extent been induced by the defendants’ attitude in response to the various planning applications submitted to them and on which they have granted conditional permissions.
65. I do not accede to or accept the argument of BAe that because in 1998 their use became permanent that meant any legitimate expectation of an ultimate return to agriculture became, for some reason, untenable or was thereupon abandoned.
66. Even if I am wrong about placing the claimants in the third category and they ought to be regarded as falling within the first category, I have already held that the defendants’ decision was irrational: I find they have not given proper weight to the implications of not fulfilling the promise which they made, expressly or impliedly, by introducing the condition and by continuing it over many years.
67. It follows that I do not accept Mr Forsdick’s argument that because in 1998 BAe’s use became permanent and in his words “there was no reason to suppose they were about to leave” it was to be expected that the use of the aerodrome would continue for the foreseeable future. Mr Forsdick submits that the most the claimants could contend is that at some future time the defendants would have to enforce the condition for removal. He submits that the claimants’ case cannot get off the ground and that the highest expectation they have is that their views would be taken into account, as he says has clearly taken place.
68. In my judgment that argument gives insufficient weight to the expectations of the claimants that legal, valid and long-standing conditions would be enforced and to the obligation upon the defendants of doing so. In the present case, in my judgment, it is so unfair to frustrate the expectations of the claimants that to take a new and different course such as the defendants propose will amount to an abuse of power. There is, in my view, no overriding interest relied upon sufficient to outweigh the requirements of fairness.
69. Accordingly this application succeeds. I grant judicial review of the defendant’s decision.
70. Mr Kolinskey, what are you seeking from me?
71. MR KOLINSKEY: My Lord, in relation to the question of relief.
72. THE DEPUTY JUDGE: Is it as set out in your amended form 86A?
73. MR KOLINSKEY: My Lord, yes.
74. THE DEPUTY JUDGE: The relief there sought is four-fold. First, certiorari to quash the decision so far as it surrenders the requirements to demolish buildings etc. Are you seeking relief in those terms first of all?
75. MR KOLINSKEY: My Lord, yes. I would seek the order of certiorari that your Lordship has indicated and the order of mandamus set out in paragraph 2. My Lord as for the declaration to legitimate expectation my Lord dealt with that in my Lord’s judgment and I do not seek—-
76. THE DEPUTY JUDGE: I do not think I need give a formal declaration to that effect.
77. MR KOLINSKEY: My Lord, no. My Lord has indicated in my Lord’s judgment in the clearest possible terms my Lord’s view on the legality of the condition and my Lord I am sufficient to rely upon that rather than to seek additional relief in that respect.
78. THE DEPUTY JUDGE: So you seek relief in terms of the first two paragraphs, do you?
79. MR KOLINSKEY: My Lord, yes.
80. MISS PATRY: My Lord, I appear for the defendants and we would not be resisting that relief.
81. MR FORSDICK: That relief seems entirely appropriate, my Lord.
82. THE DEPUTY JUDGE: Very well, certiorari and mandamus will go in the terms set out in the amended form 86A.
83. MR KOLINSKEY: In relation to the question of costs, my Lord, the claimants would seek an order for detailed assessment of their costs to be paid by the defendants. My Lord because of the two day time estimate this matter is outside of the summary assessment regime. My Lord that is all I say as to the amount of costs. I would ask your Lordship to give some consideration to the question of the timing of costs. My Lord has power to grant an interim payment of costs—-
84. THE DEPUTY JUDGE: What are you referring to?
85. MR KOLINSKEY: My Lord the question of costs will be assessed in due course by detailed assessment. That process may take some time. It is also possible – subject to matters that may be addressed either directly to your Lordship or to the Court of Appeal – that this matter may go further and my Lord in those circumstances in the light of your Lordship’s judgment and in light of the fact that my clients are individuals who are in my submission taking a public interest challenge, not one which impacts on their financial interest, but one effectively which is one of concern on behalf of the residents of the locality, in those circumstances my Lord I would invite you to order detailed assessment but to order that costs be paid but in any event not to be stayed if the matter is appealed, and furthermore to order an appropriate payment on account—-
86. THE DEPUTY JUDGE: How can I do that? I am not inviting any applications for leave, of course, but it is possible the matter may reach the Court of Appeal. I hold no grand views of my own infallibility and it is possible the Court of Appeal may disagree with me and in such an event any order for costs would be overturned and what would happen to any costs that have already been paid to your clients? It cannot possibly be made unconditional upon any leave to appeal, can it?
87. MR KOLINSKEY: My Lord, clearly I accept that if my clients were not to succeed in the Court of Appeal the question of costs would need to be revisited. However if I may briefly refer your Lordship to two provisions of Part 44 of the Civil Procedure Rules, my Lord.
88. THE DEPUTY JUDGE: Which volume of the white book?
89. MR KOLINSKY: It is in the first volume at page 631. My Lord, there are two brief provisions that I would ask your Lordship to bear in mind in relation to your Lordship’s discretion. The first one is Part 44 sub-paragraph (8). My Lord the second one is over the page at page 637 in relation to the time for complying with an order for costs. That is rule 8 of Part 44, my Lord.
90. THE DEPUTY JUDGE: I see.
91. MR KOLINSKEY: In my submission my Lord has the power and I would invite my Lord effectively not to make an order at to the timing of costs because in my submission rule 8 provides for that, but to exercise my Lord’s power under Part 44 rule 3(8) to indicate an appropriate amount to be payable within 14 days in any event. My Lords those are my submissions.
92. THE DEPUTY JUDGE: You are only seeking this order against the defendants, not against the interested party.
93. MR KOLINSKEY: My Lord, that is right. Any costs order I seek is simply against the defendants.
94. THE DEPUTY JUDGE: What do you say, Miss Patry?
95. MISS PATRY: As to the amount of costs we would not be resisting that and we are quite happy for it to go for detailed assessment.
96. THE DEPUTY JUDGE: You cannot resist an order for costs in general terms and you cannot resist an assessment of the costs. So far so good. What about these peculiar or special applications?
97. MISS PATRY: We would oppose the application for an interim payment for the reason that there has been no evidence presented as to any specific financial need on behalf of the applicants, and secondly as your Lordship has indicated this case may go on higher to the Court of Appeal and at that stage it may well be that the appeal is successful and as you have indicated repayment of costs would be an appropriate at that stage. As such we would simply ask you to — the other point I wish to make is that in any event permission to appeal does not prevent the payment of costs and as such we would be opposing the application made by my learned friend this morning.
98. THE DEPUTY JUDGE: Do you want to reply?
99. MR KOLINSKEY: My Lord, no.
100. THE DEPUTY JUDGE: I order costs of the claimants to be paid by the defendants and those costs will be assessed. I do not make either of the special orders which counsel asks me to make. I have a discretion whether or not to do so and I refrain from doing so.
101. MR FORSDICK: Can I make an application? It probably is a formal one and possibly unnecessary but I wish to make it anyway. That is that BAe be added as a defendant. The reason for the application is that – I do not know what my learned friend on behalf of the counsel will say in relation to permission to appeal – but under the old rules, and this is a challenge under the old rules, the challenge could only be sustained on appeal to the Court of Appeal by a defendant. Now a defendant is a person directly affected under the old rules and we say clearly we are directly affected by this application and therefore it would be entirely for us to be joined as one used to be called as a second respondent.
102. THE DEPUTY JUDGE: Does anyone have any objection to that application?
103. MR KOLINSKEY: My Lord, no.
104. THE DEPUTY JUDGE: Yes, Mr Forsdick.
105. MR FORSDICK: In those circumstances my Lord I have an application for permission to appeal if I may.
106. THE DEPUTY JUDGE: I imagined that was coming. You have the springboard now from which to make your application.
107. MR FORSDICK: Yes. My Lord if I can I will be brief. My Lord has had the substantive submissions in my Lord’s judgment. But if I can go again in reverse order. The legitimate expectation point: the way in which my Lord has put it is effectively, in my respectful submission, to result in exactly that situation which I submitted would be inappropriate, namely to override the statutory framework under which planning decisions are to be made. I understand the way in which my Lord has put it and there is no overriding reason why legitimate expectation should not be given effect but what I say in response to that is that legitimate expectation cannot, as a matter of law, override section 54A, material circumstances, up until circumstances of the development plan and so on. The reason I ask for permission is that when this goes back to the council at the moment they are facing a judgment which says that they have to recognise and give substantial weight to legitimate expectation irrespective – and this is the point – as to the countervailing planning merits and that, in my submission, is a substantive and important point of general principle which is worthy of consideration by the Court of Appeal. That is my first point.
108. The second basis upon which my Lord refused a grant of the application was in relation to the irrationality and then the legality of the condition and I can deal with both those points briefly. The substantive submission that was made was that in the year 2000 when the council was considering this application it had before it an application which it had to determine on the planning merits in accordance with the development plan and so on. My Lord, I started my submissions a week or so ago by highlighting what in my submission were the overwhelming predominance of planning reasons in the report committee and in the consideration the committee had given and my Lord what we say is the correct question and a question that remains open on your Lordship’s analysis is that when one concludes as a matter of planning judgment on the facts then pertaining – so in the year 2000 the facts then pertaining – that a condition is unnecessary or does not fulfil the Newbury test, is not necessary in order to permit the development suggested to go ahead. If that is the judgment and the planning judgment of the decision maker – not of this court but the decision maker – then there is no basis in law and indeed no need in law for any condition to be imposed or to be continued to be imposed. I say that that is a really fundamental issue because what I respectfully submit is that my Lord has strayed into second guessing the decision maker’s ability to decide the planning merits and with of course the greatest respect what I say is that it is a delicate balancing act to be done but I respectfully submit that my Lord has gone into the planning merits and has overruled the council on the planning merits in circumstances where it is not justified to have done so. Those are my submissions.
109. MISS PATRY: We would also like to apply for permission to appeal and we would adopt the reasoning of Mr Forsdick. In addition we would simply ask that you exercise your discretion under rule 52.4 which is to do with an extension of time for filing an appellant’s notice if permission were to be granted.
110. THE DEPUTY JUDGE: An extension of time to do what?
111. MISS PATRY: To file the appellant’s notice. This will only be decided by your Lordship should you grant permission.
112. THE DEPUTY JUDGE: You had better refer me to the rule.
113. MISS PATRY: It is rule 52.4.
114. THE DEPUTY JUDGE: Which page?
115. MISS PATRY: Page 762 of the white book.
116. THE DEPUTY JUDGE: Paragraph 1 refers to an appellant seeking permission from the appeal court.
117. MISS PATRY: If you were to refuse permission we would need that.
118. THE DEPUTY JUDGE: If you have permission, or even if you do not, why can you not file your notice within 14 days?
119. MISS PATRY: There are two reasons for this. The first reason is that the respondent is a local authority and local authorities have to go through a number of procedures before it can even be established that they wish to proceed with an appeal and these can be committees and subcommittees. The second reason would be that we are approaching the Christmas period which also would put them in difficulties to submit their application in time. I would ask you to exercise your discretion.
120. THE DEPUTY JUDGE: You say we are approaching Christmas but in 14 days from now the courts here will still be sitting and your clients will still be administering their local planning authority. They will still be at work in their offices in a fortnight’s time, will they not?
121. MISS PATRY: I simply make the application because I must at this stage.
122. THE DEPUTY JUDGE: Mr Kolinskey, what do you say to the applications for permission to appeal?
123. MR KOLINSKEY: My Lord, I oppose the application for permission to appeal. In my submission in the light of your Lordship’s judgment the application does not have a reasonable prospect of succeeding in the Court of Appeal. My Lord has given a clear and robust judgment on all three grounds. It is of course right that my clients—-
124. THE DEPUTY JUDGE: I think Mr Forsdick is saying it is too robust and does not descend into the planning particulars. I think that is the nature of his application.
125. MR KOLINSKEY: My Lord, in my submission the right course now would be either for the respondents to apply to the Court of Appeal and for your Lordship to refuse permission or for them to take a good look at the judgment and effectively refer the matter back to the planning committee or planning committee to decide the planning merits in accordance with your Lordship’s judgment. Of course it is for your Lordship to decide but I would invite your Lordship to refuse the application for permission, not least of which because in my submission even if it is right that your Lordship did go beyond what was necessary, it was only necessary to succeed on one ground for this matter to be rightly quashed and rightly referred back to the planning committee. Any other point is in my submission academic and the proper course is for this matter to be reconsidered on planning merits by the respondent in the light of your Lordship’s judgment. I invite your Lordship to refuse permission.
126. THE DEPUTY JUDGE: I think this is a proper case for me to grant permission.
127. MR FORSDICK: I am grateful, my Lord. Could I then make an application as well along the same lines as my learned friend for the council, but on a slightly different reasoning, in relation to the time for service of the notice of appeal. My Lord gave a very detailed extempore judgment and we were all writing as fast as we could.
128. THE DEPUTY JUDGE: It was not an extempore judgment at all. It was a carefully prepared reserved judgment, considered over many days. If you thought it was extempore then you flatter my intellect.
129. MR FORSDICK: My Lord, what I meant was it has not been handed down.
130. THE DEPUTY JUDGE: The reason for that, Mr Forsdick, is what I would describe as a logistical one. I no longer have a clerk who can decipher my writing and therefore I am not able so easily now to have my judgments typed up and handed down, as I would have liked to have done. Therefore I have to write them myself and that means that I have to read them myself.
131. MR FORSDICK: My Lord of course.
132. THE DEPUTY JUDGE: I quite see it means that you do not—-
133. MR FORSDICK: We do not get a transcript for 28 days, my Lord, and given that the QCs in the case are not here today it is a case that requires, as my Lord will have been aware, skeletons and submissions. It is very complex.
134. THE DEPUTY JUDGE: What time are you seeking?
135. MR FORSDICK: Apparently the normal procedure is that the shorthand writers get a finally approved transcript from my Lord within 21 days, as I understand it. I am not giving evidence here.
136. THE DEPUTY JUDGE: Unless I expedite the transcript.
137. MR KOLINSKY: My Lord, if it would assist my clients would not oppose your Lordship extending time if your Lordship was minded to do so.
138. THE DEPUTY JUDGE: I had not appreciated the difficulties occasioned by my having to read the judgment in the circumstances I have described and I can quite see that puts the parties to some further difficulties and delay.
139. MR FORSDICK: The difficulty only arises because of the complexity of the legal points here and we need to get exactly the words my Lord used before the Court of Appeal when taking up my Lord’s permission. We do ask for an extension. I would imagine 28 days would be appropriate.
140. THE DEPUTY JUDGE: That is the time I had in mind. Does anyone object to an extension of time of 28 days?
141. MR KOLINSKY: My Lord, no.
142. THE DEPUTY JUDGE: Very well. I have to set out my reasons.
143. MR FORSDICK: The first is that there is a point of significant public importance in this area on all sides, if I can put it like that. The second is that it raises important points of general principle in this area.
144. THE DEPUTY JUDGE: You mean area of law rather than—-
145. MR FORSDICK: I mean the Waverley Borough Council area. Secondly it raises points of general principle in relation to the interplay of legitimate expectation with statutory requirements. Thirdly, the role of the court in adjudicating upon merits of the imposition of conditions, if I can put it — that is not very well phrased.
146. THE DEPUTY JUDGE: Adjudicating upon—-
147. MR FORSDICK: The merits of the imposition of conditions. I hope I am not being bound by precise words used, but those are the significant points.
148. THE DEPUTY JUDGE: Yes, thank you.