R (Corus UK Ltd t/a Orb Electrical Steels) v Newport City Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lord Justice Elias,Lord Justice Pitchford |
| Judgment Date | 23 November 2010 |
| Neutral Citation | [2010] EWCA Civ 1626 |
| Docket Number | Case No: C1/2010/1504 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2010 |
[2010] EWCA Civ 1626
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr Justice Wyn Williams)
Sitting at:
Cardiff Civil Justice Centre
2. Park Street
Cardiff
CF10 1ET
Before: Lord Justice Carnwath
Lord Justice Elias
and
Lord Justice Pitchford
Case No: C1/2010/1504
Mr Richard Harwood appeared on behalf of the Appellant.
Mr Ian Albutt appeared on behalf of the Respondent
Lord Justice Carnwath
This is an appeal from one aspect of the decision of Wyn Williams J, which relates to his refusal of a remedy.
The background can be stated relatively briefly. The Hendry family, who are a gypsy family, were in unlawful occupation of highway land in another part of Newport. The council needed to refurbish the Newport transporter bridge, which was nearby, in time for the 2010 Ryder Cup and they wished to start works on the bridge in January 2010. They needed to move the Hendry family before that was done.
They decided to move them to a vacant plot on an industrial estate next door to the works of the applicants, Corus UK Limited. They began clearance works in October, at that time, I understand, thinking that they could do so under permitted development rights, but when it became clear that that was not the way forward they made a planning application for temporary permission on 5 November 2009. They carried on with the works and the laying of drainage and preparing a hard surface and so on.
The planning application was approved on 16 December and they continued to implement it. Corus and other local businesses complained about the permission, and on 21 December the solicitors sent a pre-action letter. On 23 December the Hendry family moved on to the site with the agreement, or at least acquiescence, of the council.
There were further exchanges, with Corus seeking to assemble evidence, and in due course it filed judicial review proceedings on 19 February. It may be noted that one of the conditions of the permission, Condition 7, provided that prior to the first beneficial use of the site details of an emergency plan relating to the consequences of a flood event should be submitted and approved in writing by the authority. We were told that that was not in fact done, or the approval was not obtained, until 7 January 2009, with the result that technically until that point the council were not in a position to implement the permission.
The learned judge, in a careful judgment, which is not criticised on this aspect, found that the permission was unlawful for five different errors of law, which included inaccurate reporting of the views of the council's Economic Development Manager; failure to inform the committee that the council had carried out substantial works on site without permission and giving the impression that the proposal did not involve groundworks; inaccurate reporting of the view of the council's Public Protection Department that an assessment of land contamination was recommended; failure to report the view of the Environment Agency that permission should be refused on flooding grounds; an error of law in thinking that the council was under a statutory duty to allocate sufficient gypsy sites. That is a summary and the judgment can be referred to for the full details. As I say, none of that is now in issue.
The normal consequence of a permission being found unlawful in that way and certainly on grounds which are not merely technical, but go to the merits of the proposal would be that the permission would be quashed. That would leave the council free to re-determine the matter if they so wished on a proper basis or to consider some other way of dealing with the problem.
The judge did not take that course. He decided that he should look at the matter as a discretionary matter. At paragraph 104 of his judgment he rightly reminded himself, in line with R Edwards v Environment Agency [2008] UKHL 22 at [63] that the normal result of his decision would be to quash the permission. He considered the line of authority which suggests that a quashing order might be refused where the court is satisfied the outcome would be the same when it was considered afresh, but he took the view that that was not appropriate here where it was, he said, impossible to predict what a planning committee would do when faced with the information which it should have received. He also thought that the fact there were a number of different matters which had led to the unlawfulness of the permission was a factor that militated in favour of the grant of the quashing order.
He then went on to ask himself whether it was permissible to take account of the position of the Hendry family. The Hendry family had not been represented before him and there was no representations, as I understand it, or indeed evidence from them that they felt prejudiced by what had been going on. They had moved onto the site. They were living there and they had the protection of the fact that they were on...
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