R (Ware) v Neath Port Talbot County Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Dyson,Lord Justice Wall,Sir Paul Kennedy |
| Judgment Date | 03 February 2009 |
| Neutral Citation | [2007] EWCA Civ 1359,[2009] EWCA Civ 246 |
| Docket Number | Case No: C1/2007/0789 (A),Case No: C1/2007/0789 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 February 2009 |
[2007] EWCA Civ 1359
Lord Justice Mummery
Lord Justice Dyson and
Lord Justice Wall
Case No: C1/2007/0789
CO/8159/2006
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTARTIVE COURT
MR JUSTICE COLLINS
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Anthony Porten QC (instructed by the Solicitor for the Appellant Council) for the Appellant
Mr David Wolfe (instructed by Richard Buxton Solicitors) for the Respondent
Hearing dates: 27 th November 2007
Approved Judgment
This appeal, brought with permission granted by Richards LJ on 22 May 2007, is from an order dated 30 March 2007. In judicial review proceedings against the Neath Port Talbot County Borough Council (the Council) Collins J quashed a planning consent ( P2006/0788) and a hazardous substance consent ( P2006/0845) (together called “the consents” in this judgment) for the development by National Grid of a natural gas pressure reduction station on land north of the village of Cilfrew, Neath. The judge ordered the Council to pay the costs.
The development by National Grid involved the construction of “an above ground installation” (AGI) for which the Council's Planning and Development Control Committee (the Planning Committee) granted the consents on 19 September 2006 by a resolution passed by 13 to 12 votes.
The judge based his decision that the consents were invalid on an alleged procedural irregularity. He held that four councillors, who were members of the Planning Committee, had received “wrong advice” from the Council's officers, and had acted under a misapprehension of law, which was potentially material, when they abstained from voting on the relevant item at the 19 September meeting.
Mr David Wolfe, who appeared for the respondent, Ms Linda Ware, took a preliminary objection. He submitted that the Council's appeal had become academic and should not be heard. It had been overtaken by events. Fresh consents for the National Grid development were issued by the Council on 15 May 2007 re-determining and confirming the quashed consents with only minor amendments. National Grid then carried out the approved development. On 23 October 2007 Ms Ware withdrew her second judicial review application dated 19 July 2007 challenging the validity of the fresh consents, though on different grounds.
The Council, for whom Mr Anthony Porten QC appeared, urged this court to hear the appeal, to allow it and to set aside the decision of Collins J, both on the merits of the application and on the Council's liability to pay the costs of the judicial review proceedings. Mr Porten contended that the determination of the appeal would resolve issues of wider importance for local government process and would assist local authorities in conducting their business.
Mr Wolfe replied that, if the court were persuaded to entertain the appeal, it should impose terms that the order for costs against the Council in the court below would not be disturbed and that, regardless of the outcome, the Council would be ordered to pay all the costs of the appeal. Ms Ware is a publicly funded litigant.
The court decided that it would not rule on the “academic appeal” point or set terms in advance of hearing each side's arguments on the merits of the appeal. Mr Wolfe accepted that the questions raised on the appeal were not hypothetical. They arose from a decision on a concrete set of facts, on which Collins J had delivered a judgment and made an order for costs (cf Wynne v. Secretary of State for the Home Department [1993] 1 WLR 115).
I agree with Mr Wolfe that the validity of the consents is no longer a live issue directly affecting the parties' rights and obligations inter se, but the public law grounds on which the judge quashed the consents raise questions that could, in my judgment, have repercussions for the Council or for other local authorities in future cases where public law claims are made that councillors have abstained from voting (or have voted) after receiving wrong advice from Council officers. The court has a discretion to hear the appeal if it is satisfied that it is in the public interest to do so: R v. Secretary of State for the Home Department [1999] 1 AC 450 at 456G-457E per Lord Slynn of Hadley. I shall return to this aspect of the appeal later in this judgment.
Background to proceedings
The factual background to the case is in witness statements by the four councillors in November 2006 and by officers of the Council in February 2007-Mr David Michael (Principal Solicitor and Deputy Monitoring Officer), Mr Peter Moran (Head of Democratic Services) and Mr Geoffrey White (Head of Planning). Mrs Carol John was Monitoring Officer and Head of Legal Services at the relevant time, but sadly she died on 11 February 2007. A draft of an unsigned statement by her was exhibited to Mr Michael's witness statement.
The judge having indicated to the parties that there was no issue of fact which needed to be determined, the Council did not pursue its application for cross examination. The unchallenged evidence can be summarised as follows.
On 22 February 2006 Councillors Andrew Tutton, Juliet Hopkins, David Williams and Leslie Davies, who were all members of the Planning Committee, attended a public meeting of the Ratepayers Party, a registered Political Group on the Council. They were Ratepayers Party Councillors, Councillor Tutton being the Leader of the Ratepayers Party.
Objectors to the National Grid development included members of the Cilfrew Residents Association, of which Ms Ware is Secretary. Some of the Cilfrew objectors attended the February meeting and presented to it information about their opposition to the application for the consents.
Councillor Linda Williams, who was present at the February meeting, but is not a member of the Ratepayers Party, informed the Council's Monitoring Officer of the meeting and raised her concerns.
By an e-mail sent on 14 March 2006 to Councillor Tutton the Council's Monitoring Officer gave advice about attendance at the February meeting. As advised in the e-mail each councillor made a declaration at the Planning Committee meeting on 29 August 2006 that they had not expressed any opinion on the application for the consents nor had they pre-determined it. The judge found that the advice about the February meeting in the March e-mail was “entirely appropriate.” He commented that the Monitoring Officer did not have full information as to what had actually occurred at the February meeting, but was alerting the councillors to possible dangers if anything had been said indicating any pre-determination.
The advice in the e-mail referred to the Guidance “Probity in Planning” and to the Council's Planning Code and stated that “the Ombudsman and the Courts recognise the danger of pre-discussions outside of Committee especially in controversial applications.” There was no evidence that the councillors had said anything which could be interpreted as a pre-determination of, or even a pre-disposition in relation to, the National Grid development proposals.
At the 29 August 2006 meeting the Planning Committee decided to defer consideration of the application for a site visit to be made by the full Committee.
In a letter of 13 September 2006 sent to all members of the Planning Committee about site visits Mrs Carol John, as Monitoring Officer, who had advised members in an earlier letter of 18 August 2006 that they should not participate in the subsequent debate and decision making if they had not attended the site visit, emphasised that she was not seeking to prevent members from voting if they had not attended the site visit, but cautioned that failing to do so might call into question the decision making. No reference was made in the letter to the Ombudsman. Although the judge did not regard the advice in the letter as “particularly helpful”, he did not say that it was wrong.
The site visit took place on 19 September. Two of the four members (Councillors Tutton and Hopkins) did not attend the site visit. Councillor Tutton was satisfied that he could properly assess the issues without a site meeting. Councillor Hopkins had already decided not to vote at the meeting on 19 September, feeling that her integrity had, through no fault on her part, been compromised at the February meeting.
Before the start of the Planning Committee meeting on 19 September Mr Michael was approached by Councillor Tutton. Mr Michael gave advice to him by reference to the declaration and to the position set out in the letter of 13 September. He strongly advised that, in terms of legally secure decision making, it was advisable for members to have attended the site visit should they intend to vote. According to Councillor Tutton's evidence Mr Michael also advised that failure to attend could be detrimental if it went to an Ombudsman. Mr Michael made it clear to Councillor Tutton that it was his (the councillor's) decision. Mr Michael's evidence about this conversation made no reference to the Ombudsman. As there was no cross examination this difference of recollection was not resolved.
A similar difference of recollection occurred regarding the evidence of advice given by Mr Michael in response to Councillor Hopkins. Mr Michael said that he drew her attention to the advice in the letter of 13 September. According to her statement she acknowledged that Mr Michael told her that it was her decision as to whether she...
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