R (on the application of Piffs ELM Ltd) v Commission for Local Administration in England
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing,Lord Justice Dingemans,Lord Justice Popplewell |
| Judgment Date | 10 May 2023 |
| Neutral Citation | [2023] EWCA Civ 486 |
| Docket Number | Case No: CA-2022-001258 |
| Court | Court of Appeal (Civil Division) |
| Year | 2023 |
[2023] EWCA Civ 486
Lord Justice Popplewell
Lord Justice Dingemans
and
Lady Justice Elisabeth Laing
Case No: CA-2022-001258
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mrs Justice Heather Williams DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
John Hunter (instructed by Harrison Clark Rickerbys Solicitors) for the Appellant
Jason Coppel KC (instructed by Bevan Brittan LLP) for the First Respondent
James Pereira KC and Horatio Waller (instructed by Tewkesbury Borough Council) for the Second Respondent
Hearing dates: 22 and 23 March 2023
Approved Judgment
This judgment was handed down remotely at 11.00am on 10 May 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
The Appellant, Piffs Elm Limited (‘Piffs Elm’) appeals, with the leave of Singh LJ, against an order made by Heather Williams J on 22 June 2022. The appeal is resisted by the Local Government Ombudsman (‘the Ombudsman’) and by Tewkesbury Borough Council (‘the Council’). The broad issues are whether the Ombudsman had power to withdraw a final report issued in August 2019, and if so, on what grounds, and if not, whether that final report was unlawful, and, if so, whether a second report which the Ombudsman issued in the Council's favour in February 2021 was unlawful or not.
On this appeal Piffs Elm was represented by Mr Hunter, the Ombudsman by Mr Coppel KC, and the Council by Mr Pereira KC and Mr Waller. Messrs Pereira and Waller did not appear at the hearing, in order to save costs. I thank the first two counsel for their written and oral submissions and the last two for their written submissions.
In this judgment I will use the following definitions.
i. The final report issued by the Ombudsman on 22 August 2019 is ‘decision 1’.
ii. The Ombudsman's decision on 14 November 2019 to withdraw decision 1 is ‘decision 2’.
iii. The final report issued by the Ombudsman on 3 February 2021 is ‘decision 3’.
iv. There have been two hearings of relevant applications for judicial review in this case. I will refer to the first, by HHJ Jarman QC (as he then was: he is now HHJ Jarman KC) as ‘JR1’. I will refer to him as ‘Judge 1’, and to his judgment as ‘judgment 1’. The second hearing concerned two applications for judicial review, which I will refer to as ‘JR2’ (in claim CO/612/2020) and ‘JR3’ (in claim CO/1135/2020) (see further, paragraph 41, below). That hearing led to the judgment which the subject of this appeal. I will refer Heather Williams J as ‘Judge 2’, and to her judgment as ‘judgment 2’.
v. The case has a complicated procedural history involving several applications by Piffs Elm and several decisions by the Council refusing those applications. I will explain that history, and the definitions I have used in relation to it, in paragraphs 7, 8, and 10, below.
vi. ‘The Complaint’ is the complaint made by Piffs Elm to the Ombudsman on 2 June 2017.
Paragraph references are to judgment 2, or to decision 1, or decision 3, as the case may be, unless I am referring to an authority. For convenience, I will use the pronoun ‘he’ when referring to the Ombudsman.
For the reasons given in this judgment I have reached three conclusions, which are subject to the reservations which I express in paragraphs 90, and 91, below.
i. Decision 1 was unlawful.
ii. The Ombudsman had no power to withdraw decision 1. Decision 2 was therefore unlawful.
iii. Decision 3 was lawful.
I would therefore dismiss Piffs Elm's appeal, despite its successful argument that decision 2 was unlawful.
An outline of the facts
I have taken this outline from judgment 2, and from the terms of decision 1 and of decision 3.
Applications 1–3 and refusals 1–3
In October 2015, Piffs Elm applied for planning permission for an industrial development (‘application 1’). On 16 February 2016, the Council refused application 1 (‘refusal 1’). Piffs Elm then made a second similar application (‘application 2’). The Council refused application 2 on 18 May 2016 (‘refusal 2’). Piffs Elm then applied for judicial review of refusal 2. JR1 was listed for a ‘rolled-up’ hearing on 4 November 2016. In the meantime, Piffs Elm made a third application for planning permission (‘application 3’), asking for a waiver of the application fee. The Council refused the application for a waiver (‘refusal 3’). The Council drew the attention of Piffs Elm to section 70A of the Town and Country Planning Act 1990 (‘the 1990 Act’) (see further, paragraph 86 below), saying that section 70A would be engaged if application 3 were submitted with a payment, and advising Piffs Elm to reconsider its position. Piffs Elm nevertheless paid a fee of £41,244 (‘the Fee’).
The section 70A decision and judgment 1
Judge 2 recorded a statement (in a letter dated 25 June 2019 from the Council to the Ombudsman) that an officer from the Council rang Piffs Elm's planning agent after the Council had received the Fee, and told him that if the Council validated application 3, and then decided to refuse it, the Fee would be forfeited. Judge 2 made no finding of fact about this. In a letter dated 14 July 2016, the Council refused to decide application 3 on the ground that Piffs Elm had made more than one similar application and had not appealed to the Secretary of State against the decisions refusing those applications. Piffs Elm did not challenge this refusal, which I will refer to as ‘the section 70A decision’. Judge 1 heard JR1 in November 2016. He decided that there was an appearance of bias in refusal 2. He did not quash refusal 2, on the ground that Piffs Elm had had, and had not used, a suitable alternative remedy (that is, an appeal to the Secretary of State for which the time limit had not expired). Mr Coppel told us in the hearing that Piffs Elm had, at that stage, still had 17 days in which to appeal.
The ensuing correspondence
On 14 November 2016, Piffs Elm's solicitors wrote to the Council. They drew attention to the judgment of Judge 1. They asked the Council to ‘confirm’ what steps they would take in the light of Judge 1's judgment and how they would exercise their discretion to refund the Fee. The Council replied on 18 November 2016. The Council disagreed with the inferences which Piffs Elm had drawn, but said that it was inappropriate to comment without a copy of Judge 1's order and a transcript of his judgment.
Refusal 4
On 24 November 2016 the Council replied substantively, despite the fact that the Council had still not received a transcript of Judge 1's judgment. I will refer to this as ‘refusal 4’. Inexplicably, refusal 4 was not in the documents which were before Judge 2. It was not provided to us until we asked for it during the hearing. Counsel told us, however, that it was among the documents which Piffs Elm sent to the Ombudsman when, in due course, Piffs Elm made the Complaint. The letter of 24 November said that the case turned on the appearance of bias, not actual bias. There had been no abuse of power, and it was not an exceptional case in which a planning appeal should not be pursued. The Council then made three points.
i. The Council would take steps to ensure that the matters found to have given rise to an appearance of bias would not be repeated in so far as they related to the position of Piffs Elm. Had Piffs Elm's claim not been rejected, the Council ‘would most likely have appealed’ because they did not agree with Judge 1's analysis of the facts. If Piffs Elm were to appeal and were given permission to appeal, the Council would be likely to cross-appeal. But as matters stood, the Council would take steps to abide by the judgment.
ii. The Council then explained what those steps were.
iii. The Council said that Piffs Elm would not ‘receive any refund’. Piffs Elm had been told that making a third application would lead to the loss of the Fee, and was ‘in effect discouraged from making’ application 3. Piffs Elm had nevertheless chosen to make application 3, ‘in full knowledge of these consequences’. Refusal 3 had not been the subject of challenge. It was clear from Judge 1's judgment that refusal 2 should have been appealed. ‘Consequently, there will be no refund’.
The Council's internal complaints procedure
Piffs Elm then made a formal complaint to the Council, under stage 1 of the Council's complaints scheme. The Council rejected the complaint in an email dated 11 January 2017. The Council explained that the complaint related to the outcome of JR1. The Council did not consider that there was any actual or apparent bias, as it had followed its procedures, although Judge 1 had held that the decision was tainted by apparent bias. The Council did not agree with his analysis. Judge 1 had found there was no abuse of power, and refused relief because there was a suitable alternative remedy. Piffs Elm had been professionally represented but had not appealed. Piffs Elm could have appealed within the statutory time limit. The Fee had to be paid for application 3 to be validated, and Piffs Elm had been advised of the risks in respect of the decision and of the Fee. In paragraph 29 (see paragraph 47, below), Judge 2 considered how that email should be understood.
Piffs Elm made a stage 2 complaint in a letter dated 12 January 2017. The Council rejected that complaint in an email dated 17 March 2017. There was no justification for reimbursing the Fee. Piffs Elm had not appealed to the Secretary of State against the refusals of applications 1 and 2, had not applied for judicial review of the section 70A decision, and had made...
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