R (Garner) v Elmbridge Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Lloyd,Lord Justice Richards |
| Judgment Date | 29 July 2010 |
| Neutral Citation | [2010] EWCA Civ 1006 |
| Docket Number | Case No: C1/2010/1272 & C1/2010/0592 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2010 |
[2010] EWCA Civ 1006
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Mr Justice Nicol
Before: Lord Justice Lloyd
Lord Justice Richards
and
Lord Justice Sullivan
Case No: C1/2010/1272 & C1/2010/0592
Mr Richard Drabble QC and Mr David Wolfe (instructed by Richard Buxton) appeared on behalf of the Appellant.
Mr James Findlay QC and Mr Robert Williams (instructed by Sharpe Pritchard) appeared on behalf of the Respondent.
Mr Jeremy Hyam appeared on behalf of WWF (UK) and Friends of the Earth, intervenors.
Lord Justice Sullivan:
Introduction.
This is an appeal against the order made on 3 March 2010 by Nicol J, insofar as that order dismissed the appellant's application for a protective costs order (“PCO”) and ordered that he should pay the respondent's costs of the PCO application summarily assessed in the sum of £3,000.
There is also an application for permission to appeal against a further order made by Nicol J on 27 April 2010 on the papers, refusing permission to add Keith Garner Limited as an additional claimant and refusing an application for a PCO in respect of both that company and a Mr Gerald McAully, who was granted permission to be added as a second claimant. He has so far declined to take up that permission because he was not granted a PCO.
Background.
On 16 June 2009 the respondent granted planning permission to the interested parties for a comprehensive redevelopment of Hampton Court Station and adjoining land at Hampton Court Way, East Molesey (“the site”). The site is on the opposite bank of the River Thames from Hampton Court Palace. The Palace is a scheduled ancient monument and a grade 1 listed building. The appellant lives in London SW11. He is neither a local resident nor is he a local elector. He does, however, have a long-standing interest in Hampton Court Palace; he is an architect and his practice specialises in conservation of historic buildings. He worked for Historic Royal Palaces (“HRP”) from 1994 to 2004. During that time one of his duties was to advise the director of Hampton Court Palace on planning applications affecting its setting. He advised that objection should be made to a number of developments over the years which would have had an adverse effect on the setting of the palace. The applications for those developments were refused.
After leaving HRP the appellant maintained his interest in the palace. In 2007 he objected to an earlier scheme for the redevelopment of the site. This proposal became known as “the boathouse scheme” because of the architectural treatment of the hotel that was proposed within the scheme. The appellant did not object to the architectural treatment but to the scale of the proposed development and the effect of a redevelopment on the site of that scale on the setting of the palace. In the present scheme, for which planning permission was granted on 16 June 2009, the architectural treatment has been changed. It is known as the “classical scheme”. The appellant says in his second witness statement that he was not sent a copy of the notice which the respondent sent to objectors to the boathouse scheme informing them of the new application for the classical scheme, but, in any event, when the appellant learnt of the new proposal he did not think it necessary to resubmit his objection because his objection in 2007 to the scale of the proposed redevelopment was, in his judgment, equally applicable to both the boathouse scheme and the classical scheme since the scale of the proposed redevelopment on the site remained the same. The only material difference was the architectural treatment to which he had not objected.
The appellant's judicial review claim form was filed on 14 September 2009. The grant of planning permission was challenged on three principal grounds: 1) that the respondent had failed to give a summary of its reasons for granting planning permission; 2) that the respondent had failed to address or to apply the statutory requirement that when deciding whether or not planning permission should be granted special regard should be had to the desirability of preserving the setting of listed buildings; and 3) that the respondent had not applied the sequential test set out in PPS 25 for development proposals in a flood plain. The claim included an application for a PCO.
In a witness statement in support of the claim Ms Foster, a Californian lawyer employed by the appellant's solicitors, explained why the appellant was seeking a PCO. She said that although the appellant's funds were limited he had agreed to be responsible for lodging the proceedings so that they could be brought within the three-month time limit, but:
“Given his individual limit on funds, he could not and would not afford to take on the risk of fighting a judicial review without costs protection. If the PCO is no granted, I am instructed that he would have no option but to withdraw from the proceedings or find a substitute claimant.”
She said that the appellant's solicitors firm, which, I would add, has extensive experience in environmental judicial reviews, generally estimates each side's costs in a one-day straightforward judicial review, where permission to apply for judicial review is granted on the papers, as about £15,000 plus VAT. However, if there are complications, for example if permission is refused on the papers and the application has to be renewed at an oral hearing, then the costs can easily double; so the appellant, if unsuccessful, would be facing a costs liability for £30,000 if the case was straightforward, or £60,000 if it proved to be complicated. The appellant could not afford such sums and, realistically, she said £1,000 to £1500 could be raised from the local community.
The respondent and the two interested parties filed acknowledgements of service; they contended that the grounds of challenge had no merit; but they also contended that the appellant did not have a sufficient interest to bring the proceedings and that the proceedings had not been brought promptly. They also opposed the grant of a PCO.
It is relevant to note that both the respondent and the second interested party claimed the costs of their acknowledgements of service. The amounts claimed were £6,080 and £8,839.60 respectively: a total of £14,918 before the papers had even gone before a judge.
On 9 December 2009 Mr George Bartlett QC, sitting as a deputy High Court judge, considered the matter on the papers and refused permission to apply for judicial review. He said:
“There was a failure to give a summary of the reasons for granting permission in accordance with Article 22(1) of the Town and Country Planning Act (General Permitted Development) Order 1995, as the defendant accepts. Such a failure may well not justify the grant of permission where it is otherwise apparent that the planning authority have taken into account and weighed properly the relevant policies and other material considerations. Here, however, the Council were required to have special regard to the desirability of preserving the setting of Hampton Court Palace, and, in view of the duty, an important issue was whether the river frontage of the site should be kept free of substantial development. There is in any view a clearly arguable case, as evidenced by the officer's report, that, while detailed consideration was given to the design of the proposed buildings, the Council failed to apply the statutory requirement, of which there is no mention in the report, and failed to address this important issue, which the report does not discuss, by reference to it.
There is no reasonably arguable case on the application of PPG25, in my view. This matter, which was not apparently of concern to the claimant at any earlier stage, was dealt with in paragraphs 8.4.1 to 8.4.6 of the officer's report in a way that appears to me to address properly both the sequential test and the criteria in the exception test.
Had the claimant objected to the application for planning permission, he would have had sufficient standing. On what is not simply a local issue but one of national significance because of the importance of Hampton Court Palace, his interest, as a person concerned with the protection of historic buildings, and the Palace in particular, and as one whose views appear to accord with those of many individuals and groups, including Historic Royal Palaces, would have qualified him to bring proceedings. I would also have considered it an appropriate case for a protective costs order. But he did not object to the application, despite the fact that the Committee resolution in December 2008 to grant permission must have alerted him to the need for the Council, when determining the applications in June 2009, to consider the issue of keeping the river frontage substantially free of development. Not having sought to influence the decision, I do not think that he has sufficient standing.
In addition the application was not made promptly, in that over five weeks elapsed before he sought legal advice and a further five weeks elapsed before the pre action protocol was issued. It appears that delay is financially prejudicial to the charity the Royal Star and Garter.
Despite the importance of the issue that the claimant seeks to bring before the court I do not think in these circumstances that permission should be granted.”
Mr...
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