R (on the application of Liverpool Open and Green Spaces Community Interest Company) v Liverpool City Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty,Lord Justice Lindblom,Lord Justice Newey |
| Judgment Date | 09 July 2020 |
| Neutral Citation | [2020] EWCA Civ 861 |
| Date | 09 July 2020 |
| Docket Number | Case No: C1/2019/0388 |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 861
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
PLANNING COURT
MR JUSTICE KERR
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Lord Justice Lindblom
and
Lord Justice Newey
Case No: C1/2019/0388
and
Mr Paul Tucker Q.C. and Ms Constanze Bell (instructed by Liverpool City Council Legal Services) for the Appellant
Mr Ned Westaway and Mr Charles Streeten (instructed by E. Rex Makin & Co Solicitors) for the Respondent
The Interested Parties did not appear and were not represented.
Hearing date: 19 May 2020
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
When a local planning authority granted planning permission for a development of housing in two listed buildings and on land within their settings, did it misinterpret and misapply development plan policy for development proposed within a Green Wedge? And did it fail to comply with the duty in section 66(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990 (“the Listed Buildings Act”)? Those are the two central questions in this case.
The appellant, Liverpool City Council, appeals against the order of Kerr J. dated 4 February 2019, quashing two planning permissions granted by it for development on its own land. The first proposal, in an application submitted by the first interested party, Redrow Homes Ltd., was to demolish existing buildings and construct 39 dwellings on land at Harthill Road, adjoining Calderstones Park, and to convert Beechley House and Beechley Stables – both grade II listed buildings – into 12 apartments. The site, of about five hectares, lies in the Calderstones/Woolton Green Wedge and an area of Green Space. It was occupied by a city council depot, a miniature railway, stabling for horses ridden by people with disabilities, and a facility for disabled children known as “Calder Kids”. Planning permission was granted on 9 January 2018. The second proposal, in an application submitted by the second interested party, Arthur Brooks, on behalf of Merseyside Live Steam and Model Engineers, was to relocate the miniature railway on land at Menlove Avenue. Planning permission was granted on 10 August 2017. The respondent, Liverpool Open and Green Spaces Community Interest Company, whose objects are “[to] preserve; enhance and support the green and/or open spaces … of South Liverpool …”, was an objector to both proposals. It challenged the two planning permissions in separate claims for judicial review.
The company's challenge succeeded on two grounds: that, in granting each of the two planning permissions, the city council had misinterpreted and misapplied the policy for development proposed within a “Green Wedge” – saved Policy OE3 of the Liverpool Unitary Development Plan, adopted in November 2002 (“the UDP”) – and that, in granting planning permission for Redrow's proposed development, it had also failed to comply with the duty in section 66(1) of the Listed Buildings Act. The city council and Redrow both sought permission to appeal, which the judge granted. On 25 March 2020, Redrow lodged a notice of discontinuance – effectively withdrawing its appeal. The city council, however, maintains its own appeal and seeks to have it determined.
The issues before us
The two issues in the city council's appeal correspond to those on which the judge allowed the claims. In a respondent's notice the company raised a third, which concerned the status of the site as part of Calderstones Park, but that was not pursued before us. However, there is now a prior question for us to decide. Given Redrow's withdrawal, the company says the city council's appeal is academic and should not be entertained. With the parties' agreement, we heard full argument from either side, both on that question and also on the issues in the appeal.
Is the appeal academic?
The city council maintains that neither of the planning permissions will be implemented, but also contends that in a wider context the appeal is not academic. At the hearing it gave an undertaking to the court through its leading counsel, Mr Paul Tucker Q.C. – foreshadowed by correspondence between its Principal Solicitor (Regulatory) and the company's solicitor – “that, in the event of this appeal succeeding so that [the permission for the housing development] is reinstated, it will not commence any development under that permission or permit any other person from so doing [sic] insofar as that lies under its control”. This is intended to give effect to a statement made by the Mayor of Liverpool, Joe Anderson, published in the local press and online on 18 January 2019 and confirmed by him on BBC Radio Merseyside on 19 January 2019, that the housing scheme is “dead”. The undertaking does not satisfy the company, whose solicitor, in a letter to the city council dated 18 May 2020, says that “what is required is an undertaking that regardless of the outcome of the appeal the land is only to be used as it is currently or as a park”.
The relevant legal principles are clear. In R. v Secretary of State for the Home Department, ex parte Salem [1999] 1 A.C. 450, Lord Slynn said (at p.457A-B) that “… appeals which are academic … should not be heard unless there is a good reason in the public interest for doing so …”. In Hutcheson v Popdog Ltd. (News Group Newspapers Ltd., third party) (Practice Note) [2012] 1 W.L.R. 782, Lord Neuberger of Abbotsbury M.R. (at paragraph 15) identified “three requirements” that “have to be satisfied before an appeal, which is academic between the parties, may … be allowed to proceed: (i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or is at least completely indemnified on costs and is not otherwise inappropriately prejudiced; (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated”. And in Hamnett v Essex County Council [2017] 1 W.L.R. 1155, Gross L.J. (at paragraph 37) noted that the authorities did not suggest any “inflexible rule”, but “point to the court having a narrow discretion to proceed, to be exercised with caution – even when a point of public law of some general importance is involved”.
For the company, Mr Ned Westaway and Mr Charles Streeten submitted that the requirements identified in Hutcheson are not satisfied here. They contended that neither of the issues in the appeal raises any point of “general importance”. The company did not agree to the appeal proceeding. But the city council ought in any event to pay its costs, and had not offered any indemnity. There was no dispute that both sides of the argument could be ventilated.
Mr Tucker submitted that the requirements in Hutcheson can all be met in this case. In particular, this court's interpretation of Policy OE3 is of more general importance. It will influence many other decisions where the policy is engaged, and will have ramifications for decision-making by other authorities whose development plans contain policies for areas of Green Wedge or similar designation. The policy applies to large areas of land within the city. As of 5 May 2020, it was relevant to six current proposals for sites in a Green Wedge – at Merseyside Police Sports Club, Riversdale Road; at Otterspool Promenade; at Beechwood Road South; at Allerton Manor Golf Course; and at Woolton Road. Ascertaining what it means is in the wider public interest. At the moment, the city council is bound by Kerr J.'s interpretation, which it believes is mistaken (cf. the judgment of Dove J. in R. (on the application of Tewkesbury Borough Council) v Secretary of State for Communities and Local Government [2019] P.T.S.R. 2144 – where the disputed interpretation of policy was an inspector's, not the court's). Though the successor policy in the emerging local plan – draft Policy GI 2 of the Liverpool Local Plan 2013–2033 Pre-submission draft of January 2018 – is in different terms, its effect is similar. That plan-making process still has a long way to run, the public examination having been suspended. Policy OE3 of the UDP will therefore be extant for some time to come.
In my view Mr Tucker's submissions have force. The question here is not whether the appeal is academic between the parties, as seems to be so. It is whether, applying the three requirements in Hutcheson in this public law context, as in Hamnett, we should exercise our “narrow discretion” to hear an appeal said to have broader relevance and importance than to the case itself.
The second and third requirements are both satisfied now, or can be. The company resists the appeal being entertained, but does not dispute that it can be suitably indemnified on costs, whatever the outcome. Nor can it say that its own interests are prejudiced in some other way. And there is no doubt that both sides of the argument can be “fully and properly ventilated”. This has now happened. The appeal was thoroughly and impressively argued on either side.
As for the first requirement, as Mr Tucker conceded, there is no wider importance in the section 66(1) issue, which is already the subject of ample authority. But the Policy OE3 issue is of a different kind. It...
To continue reading
Request your trial
-
R Helen Elizabeth Kinsey v London Borough of Lewisham
...Assurance Ltd) v North Lincolnshire Council [2012] EWHC 3708 at [15].” 47 In R (LOGS CIC) v Liverpool City Council [2019] EWHC 55, [2020] EWCA Civ 861, the Court of Appeal upheld Kerr J.'s conclusion that the Council's application of section 66(1) of the Listing Buildings and Conservation ......
-
R Sue Wyeth-Price v Guildford Borough Council
...(at [37]). 27 The authorities were considered most recently by the Court of Appeal in R (LOGS CIC) v Liverpool City Council [2020] EWCA Civ 861, which upheld Kerr J.'s conclusion that the Defendant's application of section 66(1) PLBCAA 1990 and the Framework to the heritage assets was flaw......