Somerford Parish Council v Cheshire East Borough Council Richborough Estates Ltd (Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Stewart
Judgment Date21 March 2016
Neutral Citation[2016] EWHC 619 (Admin)
Docket NumberCO/2805/2015

[2016] EWHC 619 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Stewart

CO/2805/2015

Between:
Somerford Parish Council
Claimant
and
Cheshire East Borough Council
Defendant
Richborough Estates Limited
Interested Party

Mr V Chapman QC (instructed by Wedlake Bell LLP) appeared on behalf of the Claimant

Mr P Petchey (instructed by Cheshire East Borough Council) appeared on behalf of the Defendant

Ms M Ellis QC (instructed by Gateley LLP) appeared on behalf of the Interested Party

1

POST JUDGMENT DISCUSSION

Mr Justice Stewart
2

I shall formally hand down the judgment in this case.

3

Yes, Mr Chapman?

4

MR CHAPMAN: As before, I am appearing for the Somerford Parish Council, Mr Philip Petchey is here for Cheshire East Borough Council and Ms Morag Ellis QC is here for the interested party. In February, I did lodge in court a draft order, some submissions in support of the draft order and two draft schedules of costs; one for my client and one for Mr Petchey's client, the interested party has not put in a schedule of costs in the circumstances.

Mr Justice Stewart
5

I have got everything.

6

MR CHAPMAN: Then last week we submitted into court an updated statement of our costs. I do not know whether your Lordship has received that.

Mr Justice Stewart
7

I have, thank you.

8

MR CHAPMAN: You will see that our summary of costs now comes to approximately £48,000. There are two reasons why it is larger than the original statement of costs. One is that the costs of one of the fee earners, Mr Tom Cripps, Grade D, was not included for some reason in the calculation in the original statement of costs and that just seems to have been a glitch of some sort. The second reason is that the up-to-date statement of costs includes post-judgment costs, including the costs of considering judgment and trying to agree an order, which we have not been able to do. In substance I think the real issue on the order is costs but can I just run through the order which I have drafted.

Mr Justice Stewart
9

Yes. From Mr Petchey's submissions, which I received on Saturday morning, it seems to be that the only matter he now takes issue with is paragraph 5. Is that right?

10

MR CHAPMAN: Yes. I mean, it is all a bit of an argument about nothing because as I understand it the present position of Cheshire East is that they are intending to redetermine the application themselves and they are not intending to appoint Mr Marwick as an independent expert to advise them second time round. So there does not seem any real issue of substance between us but we would like to have it made clear that Mr Marwick should not be the independent legal expert because obviously having expressed a view on the matter and having fallen into procedural error it would not really be appropriate for him to be re-instructed as an independent expert.

Mr Justice Stewart
11

One possibility is to take out paragraph 5 and add in brackets to paragraph 4: the defendant agrees it will not reappoint Mr Marwick.

12

MR CHAPMAN: We would be perfectly happy with that recital of some sort.

13

MR PETCHEY: The short point is that actually as far as the defendant is concerned the order is just too complicated. All it need do is provide for the quashing of the order and what follows from that is a matter of law that is well known. So it is a matter for your Lordship but there is no need for 2 and 3, they just follow as a matter of law, and likewise 4.

Mr Justice Stewart
14

There is no harm in it being spelt out, is there?

15

MR PETCHEY: It is a matter for your Lordship. There is no harm.

Mr Justice Stewart
16

Is there any harm in it being spelt out, Ms Ellis?

17

MS ELLIS: My Lord, in my respectful submission, there is harm because what my learned friend Mr Chapman is seeking to ask the court to do is, with the greatest of respect, to ask the court to exceed its powers. He is also asking the court to do a great deal more than that which was sought in the claim form. My Lord, the reason I submit that the draft order — I should say, perhaps, to explain to your Lordship which paragraphs I am talking about, paragraph number 1 is uncontroversial, paragraph number 2 is, in my submission, unnecessary but I do not actually object to it, although it is unnecessary and in a sense is tied with the point I am about to make, numbers 3, 4 and 5, in my respectful submission, as I say, they, firstly, go well beyond that which was sought in the claim and upon which the claimant succeeded because the claimant did not succeed in some important respects in its claim but, my Lord, also, if one turns to Part 54.19, that is on page 2051:

"Court's powers in respect of quashing orders

(1) This rule applies where the court makes a quashing order in respect of the decision to which the claim relates.

(2) The court may –

(a)

(i) remit the matter to the decision-maker; and

(ii) direct it to reconsider the matter and reach a decision in accordance with the judgment of the court … "

18

So, my Lord, as I say, 1 and 2 are strictly unnecessary but there is no objection or difficulty about that but, my Lord, in 3 and 4 and 5 the claimant is asking the court effectively to intervene with the discretion of the Commons Registration Authority and that, with respect, it cannot do, certainly not on the basis of the findings which the court has made against the authority here, that simply the effect of the quash is to put matters back into the hands of the statutory body, the Commons Registration Authority, then to determine the matter afresh according to law and, with the greatest of respect, that is the end of what the court —

Mr Justice Stewart
19

Is not Mr Chapman's argument maybe that if it is determined by the defendant or another local authority then there should be a public inquiry which is in accordance with the judgment of the court?

20

MS ELLIS: My Lord, with respect, what your Lordship has found is that upon the facts as they were then in front of Mr Marwick (and, as it were, through him the authority) it would have been necessary to hold an inquiry and that there was a procedural deficiency with regards to the lateness of documents and that those two matters were interlinked in your Lordship's approach to your Lordship's reasoning and informed your Lordship's overall decision about that. Clearly the effect of the quashing, as I say, is to put the matters back to the Commons Registration Authority then to determine matters in accordance with the clean sheet, as it were, that they achieve. All it does it to unpick everything, in a sense, to the moment before the late representations were put in and then, my Lord, the Registration Authority ultimately, guided by suitable professional advice, probably external, will have to determine whether or not it is appropriate in those circumstances then pertaining to hold a public inquiry. For example, my Lord, it is quite possible that more paper evidence will be forthcoming to the Commons Registration Authority. My Lord may remember that there was talk of the potential for further —

Mr Justice Stewart
21

But I was told there was not any. Mr Petchey said I have had everything and that is why I should —

22

MS ELLIS: My Lord, the evidential position before the court was that your Lordship had everything which was then before the Registration Authority but there was mention in some of the documentary material, the emails passing, that there was a salt mine where document storage takes place which had not yet been explored. That is made clear in one of the emails, for example. So, my Lord, all I am saying is that plainly when the matter comes to be reconsidered by the local authority, with, it is clearly going to be, a new legal adviser and, my Lord, we say it is not appropriate to include in the order, we strongly support that as a matter of fact, that matters will be before that new adviser for him or her to assess, all the matters which were before Mr Marwick and any further matters which might be before them and as a matter of law it is then the discretion falls to be exercised afresh by the local authority at that point. Matters may be identical, in which case except of course that the claimant, or the applicant, will have had plenty of time to consider the late material and so that matter will not in fact be identical because there will have been plenty of time, there will be the further submissions and so forth which were placed before the court, which will doubtless be placed before the legal adviser. So matters will not be identical to what they were and the discretion falls to be exercised afresh. Of course, your Lordship's judgment will clearly weigh very heavily in the mind of the legal adviser and in the mind of the Commons Registration Authority. It will plainly be a material consideration but it will fall to be considered in the light of the full circumstances then obtaining.

Mr Justice Stewart
23

So is your submission that I just remit it to the decision maker or that I remit it and direct it to reconsider the matter and reach a decision in accordance with the judgment of the court?

24

MS ELLIS: My Lord, the former.

Mr Justice Stewart
25

Why not the latter?

26

MS ELLIS: My Lord, I would not go so far as to object to the latter but what I would submit is that the latter might not do full justice to the circumstances which I have just outlined, that clearly the court is not asked to and cannot make any particular direction about what the outcome of the application when procedurally properly determined will be and that, my Lord, I would...

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