R Cpre Kent (Claimant/Appellant) v Dover District Council and Others China Gateway International (CGI) Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sales |
| Judgment Date | 21 June 2016 |
| Neutral Citation | [2016] EWCA Civ 897 |
| Docket Number | C1/2016/0076(A) and (Z) |
| Court | Court of Appeal (Civil Division) |
| Date | 21 June 2016 |
[2016] EWCA Civ 897
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QBD, PLANNING COURT
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Sales
C1/2016/0076(A) and (Z)
and
Mr Ned Westaway (instructed by Richard Buxton) appeared on behalf of the Applicant
Mr Neil Cameron QC (instructed by Dover District Council) appeared on behalf of the Respondent
At the outset of the hearing in relation to this case today, an application is made for disclosure of certain legal advices given by leading counsel to the Council in the course of an extended period of time over which certain development proposals were first considered and then went through a process of change and development before a final set of proposals was put forward for the development of two sites on the western fringe of Dover.
The eventual application for planning permission for the sites was made in May 2012. On 13 June 2013 the local planning authority granted planning permission subject to completion of an agreement under section 106 of the Town and Country Planning Act 1990. In the event, planning permission was granted finally on 1 April 2015. The proposed appeal in this case involves judicial review proceedings whereby a challenge was brought to the lawfulness of the grant of planning permission by the planning committee of the Council.
An original set of proposals for development had been put forward considerably before that, in 2011. The Council obtained an advice from leading counsel, Mr Cameron QC, dated 18 July 2011, whereby Mr Cameron advised that, as the proposals then stood, his view was that a particular aspect of the proposals (namely a proposal for a heritage contribution to be made to benefit the most easterly of the two development sites but to be funded from residential development to take place on the more westerly site, which was to be residential development in an Area of Outstanding Natural Beauty) would not satisfy the relevant test in regulation 122 of the Community Infrastructure Levy Regulations 2010. That advice appears to have been shared with the interested party developer, presumably with a view to seeing whether they wished to modify the development proposals that they put forward.
There was some email correspondence in July 2011 between Mr Cameron and the Council, in which Mr Cameron pointed to possible adaptations of the development proposals which might assist in satisfying the regulation 122 requirements.
It appears that there was some development of proposals and further advice given by Mr Cameron in relation to events as they changed over time in an advice dated 24 January 2013 and an advice dated 6 February 2013. Those two advices have not been disclosed to anyone, and legal professional privilege is claimed in relation to them.
Finally, in May 2012 a complete and different set of proposals for development of the sites was put forward by the applicant for planning permission. Mr Cameron QC provided a fourth advice in May 2013 advising on those proposals. The advice of May 2013 is self-contained and focuses on the proposals which were actually put forward as part of the application for planning permission which eventually secured the permission under challenge as I have described.
At paragraph 2 of that advice, Mr Cameron stated: "I advise further to my Advice dated 18 July 2011 […], my Advice (No 2) dated 24 January 2013, and my Advice (No 3) dated 6 February 2013," but in the body of the advice he did not rely for his opinion in relation to the final set of development proposals on matters discussed in those earlier advices, which (certainly so far as the first advice is concerned) related to proposals which were in different form.
In due course, the officers of the Council prepared a very full officer report for the planning committee of the Council. At paragraphs 2.384 to 2.389 of that report, the officers set out for the benefit of the committee a discussion of the legal considerations in relation to the heritage payment issue. They noted that Mr Cameron's initial advice during the early stage of the application negotiations had been negative in relation to satisfaction of the requirements of regulation 122. But they then referred to his current advice, namely the May 2013 advice, which was appended to the officer report, and summarised that final advice in the report.
It is clear from the officer report, and the fact that Mr Cameron's fourth advice of May 2013 was appended to that report, that it was that final advice which was the advice specifically relied upon by the planning committee at the invitation of the Council officers for the purposes of considering whether to grant the planning permission for the final set of development proposals which were in question.
The claimant brought judicial review proceedings to challenge the grant of planning permission on various grounds. No application for disclosure of Mr Cameron's second and third advices was made in relation to that application at first instance. The application was dismissed by Mitting J in a judgment dated 16 December 2015. The claimant then applied for permission to appeal in respect of two grounds, the first ground being the allegation of non-compliance by the Council with the requirements of regulation 122. The matter was considered by Lewison LJ on the papers. He granted permission to appeal in relation to a second distinct ground, but refused permission to appeal in relation to the first ground. Again, there was no application for disclosure of Mr Cameron's second and third advices put before the court at that stage.
The claimants have applied to renew orally their application for permission to appeal in relation to the first ground, an application which is to be developed after I have determined the present application for disclosure of Mr Cameron's second and third advices.
Very shortly before the hearing date today, on 15 June the claimants issued a last-minute application for disclosure of Mr Cameron's second and third advices. Mr Westaway, who appears for the appellant/claimant has invited this court to consider and determine that application before proceeding to consider the application for permission to appeal. He submits that this is an appropriate case in which disclosure should be ordered of Mr Cameron's second and third advices, notwithstanding the claim by the Council to maintain legal professional privilege in relation to them.
Having heard Mr Westaway develop the submissions in support of this late application, I am unpersuaded and consider that it should be dismissed. That is for two reasons. First, Mr Westaway has not persuaded me that the second and third advices are relevant to determination of the legal claim that has been brought by the claimants. As to that, I note that at every stage of the proceedings up to now the claimants have had no difficulty in presenting their argument — which is an argument essentially of law in relation to compliance with regulation 122 — without reference Mr Cameron's second and third advices. In fact, it is clear, in my view, why that should be so: because, when one comes to the actual application for planning permission and the development proposals for which permission was eventually granted in April 2015, it is plain from the officer report to which I have referred that it was only the fourth advice by Mr Cameron which the planning committee of the Council was invited to rely upon and did rely upon for the purposes of its consideration whether to grant that planning permission. The advices received at an earlier stage were not referred to in the officer report (other than in passing) and the committee was not invited to rely upon those advices; nor, certainly so far as the first advice is concerned, could they possibly have done so, since it related to a different set of proposals and the advice was in materially different terms. The relevant advice was the fourth advice, which was self-contained.
So far as the legal advice on the application of regulation 122 in respect of the development proposals finally put forward and considered by the Council were concerned, Mr Westaway sought to emphasise the statement at the start of Mr Cameron's fourth advice in which he referred to the earlier three advices. But, on a fair reading of the advice as a whole, it is clear that that is simply a reference by way of reminder that there has been a history of a stream of advice generally in relation to proposals for development in this area, but without in any way in the fourth advice seeking to rely on any part of those earlier advices. It is a reminder paragraph in entirely conventional terms, which in no way invites reliance by the client on those earlier advices for the purposes of understanding the final advice which was being given by Mr Cameron in relation to the development proposals that actually matter in this case, which are those in...
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