Westminster City Council v Secretary of State for Housing Communities and Local Government

JurisdictionEngland & Wales
JudgeMr Justice Holgate
Judgment Date05 March 2020
Neutral Citation[2020] EWHC 1472 (Admin)
Docket NumberNo. CO/4722/2019
Date05 March 2020
CourtQueen's Bench Division (Administrative Court)

[2020] EWHC 1472 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Royal Courts of Justice

Before:

Mr Justice Holgate

No. CO/4722/2019

CO/3818/2019

Between:
Westminster City Council
Applicant
and
Secretary of State for Housing Communities and Local Government
Respondent

Ms S. Kabir Sheikh QC (instructed by Westminster City Council Legal Services) appeared on behalf of the Applicant.

Mr M. Westmoreland Smith (instructed by Government Legal Department) appeared on behalf of the Respondent.

Mr Justice Holgate
1

The claimant, Westminster City Council (“the Council”), has brought two claims under s.288 of the Town and Country Planning Act 1990 (“TCPA 1990”) to challenge decisions issued by planning inspectors. The substantive hearing was listed for a one-day hearing on 5 March 2020. However, as recently as 26 February the court received an indication that the matters were likely to settle and that it was hoped that a draft consent order would be submitted for the court's approval by Friday, 28 February, or at the beginning of the week commencing 2 March 2020, only three days before the hearing. By an email sent at 1.38pm on 27 February the court directed that the order be filed by 10am 28 February.

2

A draft order was submitted later that day. It simply provided for an order whereby both claims would be discontinued, the hearing date vacated and the first defendant's costs paid by the claimant (to be assessed on the standard basis if not agreed). It was accompanied by a schedule to justify the making of the order containing only 4 terse paragraphs. They simply stated that the key issues in this litigation had been decided by the Court of Appeal on 18 December 2018, the majority of decisions by planning inspectors reflected that judgment, the legislation which had given rise to the issues had been repealed and the Claimant did “not consider it a proportionate use of resources to continue this claim to final determination”. On any view it was a very straightforward document requiring little time to prepare.

3

The email from the court had required the parties to provide an explanation for the lateness of the settlement. It read:

“The consent order is to be accompanied by a proper explanation as to why, notwithstanding the fact that CO/3818/219 has been fixed for substantive hearing since 10/12/2019, and the parties sought to have CO/4722/2019 listed at the same time, the parties failed to (a) comply with the directions made by Mr Strachan QC on 27/11/2019 and Sir Wyn Williams on 29/01/2020 as to the filing of trial bundles ad skeleton arguments and (b) notify the court in good time that these matters were to settle…”

The parties were also required to provide a detailed chronology of the settlement negotiations. They were informed that they might be required to appear on 5 March 2020 to explain the position depending on the answers received.

4

The explanation provided by the claimant remained unsatisfactory and so the matter remained listed so that these matters could be properly explained.

5

The first challenge, CO/3818/2019, related to a decision dated 20 August 2019 in which the inspector allowed two appeals brought by the second defendant, Maximus Networks Limited (“Maximus”), against a refusal by the claimant to grant prior approval in respect of a permitted development right relating to telephone kiosks. The claim was issued on 30 September 2019. The claimant had been concerned about the proliferation of development of this kind within its area. It had successfully challenged an earlier decision by an inspector on the ambit of this right – see the judgment of Sir Duncan Ouseley given on 5 February 2019 in Westminster City Council v Secretary of State for Housing Communities and Local Government [2019] EWHC 176 (Admin).

6

The main ground in the claim was that the inspector's reasoning did not accord with that judgment, which had given a more restrictive interpretation to the ambit of the permitted development right. The claimant explained that its concern related to the implications of the inspector's decision for a number of undetermined applications and appeals.

7

In fact, before this claim was issued, the Secretary of State had already made and laid before Parliament regulations which removed the relevant permitted development right for public call boxes. They came into force on 25 May 2019 subject to certain transitional arrangements.

8

An appeal was brought by the telephone operator, New World Payphones Limited (“New World”), against the decision of Sir Duncan Ouseley. On 18 December 2019, the Court of Appeal robustly dismissed that appeal ( [2019] EWCA Civ 2250). New World applied to the Supreme Court for permission to appeal. That application remains undetermined as at 5 March 2020.

9

In CO/3818/2019, the first defendant, the Secretary of State, and the second defendant, Maximus, filed acknowledgements of service defending the inspector's decision. On 27 November, Mr James Strachan QC sitting as a Deputy High Court judge granted permission to the claimant to apply for statutory review holding that Grounds 1 and 2 were arguable.

10

On 10 December 2019, the court listed the substantive hearing to take place on 5 March. This gave the parties nearly four months to prepare for the hearing. The Secretary of State filed detailed grounds of resistance on 24 December. The effect of the judge's order was that the claimant was obliged to file a trial bundle by 6 February and a skeleton by 13 February. The two defendants were required to file their skeletons by 20 February. These directions were not complied with.

11

The claimant's second claim, CO/4722/2019, was issued on 3 December 2019. It relates to decisions issued by an inspector on 22 October 2019 in relation to the application of the same permitted development right to two call boxes. The grounds of challenge are essentially the same as in the first claim. On 29 January this year, Sir Wyn Williams granted permission to the claimant to apply for statutory review limited to Grounds 1 and 2. He directed that the claim should be heard on the same day as the first claim if practicable. He ordered the claimant to file a skeleton by 14 February and the defendants to file skeletons by 21 February. Those orders were not complied with. Shortly after the order made by Sir Wyn Williams, the court listed the substantive hearing of the second claim to take place at the same time as the hearing of the first claim.

12

As I have said, the court attempted to obtain an explanation as to why the proposed consent order was submitted to the court only six days before the hearing. A helpful response was provided by the Government Legal Department (“GLD”) on 27 February. I regret to have to say that the claimant's responses on 27 February and 4 March, although helpful in part, were in other respects materially inaccurate and incomplete, despite its failure to comply with orders made by the court. Some of the questions were not answered properly. Certain answers suggested a failure by the claimant to appreciate the importance of complying with its obligations about the use of the court's resources and the answering of questions from the court and so it was necessary for the hearing to remain listed.

13

In an email sent to the court on 27 February the claimant stated that at the time when it responded to the application for permission to appeal to the Supreme Court it was advised by counsel to take stock of the position on the outstanding claims and review whether it was appropriate to pursue them given the clarity of the judgment of the Court of Appeal, the repeal of the permitted development right, the claimant's wider strategy, “the vast number” of appeal decisions which by this time had been favourable to the claimant and “importantly, by now, the relatively few outstanding appeals such that the mischief would not be repeated on a large scale in the future”:-

“The Council sought advice from counsel in respect of a number of issues arising from the taking stock exercise. Given the very high profile nature of the kiosk issues, the Council took time to consider and review its position carefully. The Council gave instructions to discontinue the claims for the reasons given in the schedule appended to the consent order and in the letter provided to the Court by the GLD. The Council immediately informed the parties of this decision on 12 February and sought to agree a consent order. As explained by the GLD there then followed around 2 weeks of discussion on the costs issue.”

The words italicised did not accord with the explanation given in the GLD's emails of 27 February and 4 March, which are now agreed by the parties to be correct. The costs issue did not occupy the period of 2 weeks from that date. Instead, the claimant failed to send even a draft for consideration by the other parties until 20 February. This explanation was materially inaccurate as far as it went and it was also...

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