Murray, R (on the application of) v Hampshire County Council

LORD JUSTICE CARNWATH: In 1990, despite intense public controversy, the then Secretary of State approved the construction of an extension to the M3, in the vicinity of Winchester, passing through chalk grassland of Twyford Down. One of the compensating factors, referred to in the decision letter as a "major environmental benefit", was the proposed removal of the existing bypass and the reclamation and planting of the area. Since then the M3 extension has been built and its effect on the Down is there for all to see. At the same time, the previous bypass has been removed and the land reinstated to produce what are now flourishing grass meadows, known as Bar End Meadows.

In the meantime, however, the Hampshire County Council, as highway authority, were addressing problems of congestion in Winchester. They decided that the best solution would be the provision of a new Park and Ride car-park. Unfortunately, they also decided that the best site would be Bar End Meadows. In 1996 they submitted an application for planning permission for that purpose. That application came to the County Council as planning authority, but was called in for decision by the Secretary of State. A planning inquiry was held over four days in late 1997. The inspector recommended grant of permission subject to conditions, and the Secretary of State agreed. The permission was dated 21 October 1998.

In the course of his decision letter the Secretary of State considered the scope and relevance of the commitment given in 1990. He accepted that it was a material consideration in the planning judgment, but not that it imposed any legal restriction on the use of the site as now proposed. That matter is not in issue before us. The inspector, however, commented on how people were likely to regard the background. He stated in his report at paragraph 9.10:

On the planning merits, apart from the issue of the alleged undertaking, the inspector had summarised his conclusions as involving a balance of benefits and disbenefits (see paragraphs 8.61 to 8.62 of his report) - including, on the one hand, the harm which would be caused to the city's rural setting and, on the other, the fact that the proposals were a "key element in the council's integrated transport strategy for Winchester" and that the suggested alternative sites would "seriously distort that strategy". "Striking a balance between all these factors", he came down in favour of the proposal. The Secretary of State accepted that view. And, again, that overall judgment is not in issue before us.

The issues with which we are concerned relate to the council's proposal to mitigate the loss of the application site by providing a replacement site, which could be treated and managed to provide equivalent ecological benefits to the Bar End Meadows. Twelve sites were put forward for discussion at the inquiry, but by the end of the inquiry the practical choice had come down to five, one of which, known as site 11, was already in the ownership of the council. The inspector explained the issues and his views on it in his report. First, at paragraph 8.30 he referred to the value of the site which was small in ecological terms at present but which had considerable potential. He identified the question as "whether the mitigation sites proposed by the councils provide adequate recompense for the loss of this ecological potential". He continued at paragraph 8.31:

He recommended the grant of permission, subject to a number of conditions which he set out in appendix 2 to his report. One - condition 5 - was designed to ensure that the mitigation site was provided. He worded the condition as follows:

The Secretary of State agreed generally with the inspector's overall assessment of the planning merits. In relation to the proposed mitigation measures, he stated (paragraph 9):

At paragraph 19 he concluded that in all the circumstances permission should be granted and stated:

One notes in that condition, first, that, unlike the inspector, the Secretary of State did not say that there should be no development until the mitigation site had been actually provided. He simply required that it should be approved before development began, and that it should then be implemented as approved. Secondly - and this time like the inspector - he referred to all five sites in the condition without distinction and without specific reference to the hierarchy of preference given by the inspector.

The council then set about preparing for implementation of the permission, including the condition. They accepted in the light of the inspector's comments that site 11, although already in their ownership and referred to in the condition, should be treated as a site of last resort. Sites 3 and 4 were in the ownership respectively of the Church Commissioners and Winchester College, neither of which, as it turned out, was willing to sell. Site 8 - a former waste disposal site - was owned by Southern Water. The site was highly contaminated. The view was taken that, although the council should actively pursue the improvement of that site, the technical and financial issues were unlikely to be resolved within the necessary timescale for the transport strategy. Accordingly, it was decided to proceed with site 7 at Magdalen Hill, which the owners were willing to sell. In addition to the site identified at the inquiry (which was already larger than the area of 2.66 hectares which was to be lost) they were able to acquire adjoining land giving a site of 22 hectares in total. Details under condition 5 were submitted to and approved by the Asset Management Sub-Committee on 9 July 2001. On 29 May 2002 amended details submitted on 29 April 2002, were considered and approved by a committee called the Regulatory Committee. (It is not clear whether this was a different committee or the same committee under a different name; but, in any event, it is not in issue that each committee had the necessary planning powers.)

It is unnecessary to look in detail at the reports and other documents which were put before the committees. It is sufficient to note the way in which the objections (which included issues relating to accessibility) were treated. In the report of the planning officer to the committee, on 9 July 2001, one finds the following at paragraphs 7.9 to 7.10:

As is apparent from that, the committee was invited to approach the matter on the basis that the principle, not only of the development itself, but also that of site 7 as a suitable mitigation site, was, in effect, settled by the Secretary of State's decision. That this was the way it was presented to the committee is confirmed by the evidence in these proceedings of the county planning officer, Mr Greenwood, who said in paragraph 6 of his affidavit:

The present proceedings challenging both decisions were brought by Elspeth Murray, who lives near the site of the Bar End Meadows, and has a strong and sincere objection to their loss. She is also particularly concerned, being partially disabled, that any replacement site should be as accessible as possible. As I understand it, her preference is for site 4 or possibly site 8, both of which are closer to her and were also higher in the inspector's ranking than site 7.

There are two live grounds of challenge in the appeal. The first is that the authority had adopted an unduly narrow view of the planning issue relevant to its consideration of the condition. That contention was accepted by Mr Justice Ouseley when he quashed both decisions - that is, the decisions of July 2001 and May 2002 - on 21 November 2002.

The second issue arises from an earlier hearing on 28 June 2002, at which Mr Justice Burton rejected a contention that the submission of details in April 2002 was out of time under Section 92 of the Town and Country Planning Act 1990. That conclusion is, in turn, attacked by a respondents' notice.

Finally, in the history, I should mention that, in response to a suggestion made by Lord Justice Sedley, when initially refusing permission to appeal to this court, the proposals were re-submitted to the Regulatory Committee for consideration on 26 February 2003 with a report designed to address the concerns that led to Mr Justice Ouseley's decision. They were again approved. That decision of February 2003 is not directly before us. But I shall need to make some comments on it at the end of this judgment.

The judge attached importance to the controversial background of the case (see paragraph 54). He said:

Against that background, he said at paragraphs 63 to 66:

Acknowledging the respect due to the special expertise of Mr Justice Ouseley in this area of the law, I regret that I am unable to accept that reasoning. It is of course true that the council was wearing two hats - one as developer and one as planning authority. However, in looking at the Secretary of State's decision letter granting permission, it is important not to confuse the two roles.

Paragraph 9, which refers to the proposals of the County Council for replacement sites, seems to me clearly directed to its intentions as developer. Further, the word "commends" is wholly inapt for the imposition of a legal requirement. The Secretary of State was expecting the council as developer to take note of the inspector's preferences. Possibly, if it had gone ahead with site 11 regardless, it might have been subject to judicial review in relation to that decision. However, the history makes clear that the council as developer did have proper regard to the inspector's preferences, but also to other practical constraints.

On the other hand, the formal grant of planning permission and the imposition of conditions comes at the end of the decision letter. That is the part which defines the parameters of the council's function as planning authority. The condition itself is quite clear. It requires a scheme on one of the identified sites, but does not impose, expressly or implicitly, any preference between them. Although the Secretary of State did not adopt the precise wording used by the inspector, he made clear that the purpose was the same, namely to ensure that "there was no overall harm to the ecology of the area". As Mr Hockman accepts for the applicant, it is not the normal function of a planning condition to seek to achieve a planning gain going beyond what is needed to offset the adverse effects of the development. On the basis of the inspector's earlier conclusions, which I have already read, it was clear that this objective could be achieved by any of the sites (other possibly than site 11).

In my view, in those circumstances, the county planning officer was right to advise the committees that the acceptability in principle of site 7 had been settled by the Secretary of State's decision and that there was no need to consider the respective merits of the other sites, even if they had been available. I should add that it is very unclear to me what the reconsideration required by the judge was expected to achieve in practice. The practical considerations which led the council to regard site 7 as the only real alternative within the required timescale, seem to me entirely reasonable.

I would accordingly allow the appeal on this ground.

The planning permission was dated 21 October 1998. The amended details were submitted in April 2002, more than three years later. It was argued before Mr Justice Burton and before us that this meant that the submission was outside the time limit imposed by Section 92 of the Town and Country Planning Act 1990 which, it is said, imposes a three year time limit for that submission. The relevant part of Section 92 reads as follows:

I was surprised to find this argument being advanced in relation to provisions which were first introduced over 30 years ago in the Town and Country Planning Act 1968. If it had any validity, one would have expected this argument to have arisen before. However, in my view, it does not. Sub-section (1), which I have read, makes clear that the definition of "reserved matters" is to be looked at, not in the abstract, but with specific reference to the provisions of the relevant development order. The development order is made under Section 59 of the Act and provides a framework for the grant of planning permissions by the authority. The relevant order for our purposes is the Town and Country Planning (General Development Procedure) Order 1995. Article 3 of that provides for "applications for outline planning permission". Article 3 (1) says:

So, the reserved matters are essential components of a building development, which, as a concession, do not need to be particularised at the time of the original application; but, on the other hand, there is a requirement that those details must be put in within three years of the grant of permission. Those matters, to my mind, have nothing to do with the condition here in issue, which does not relate to a reserved matter as defined, but is concerned with an off-site mitigation measure imposed by the Secretary of State. Accordingly the permission, in my view, is clearly subject only to the five-year time limit imposed by Section 91. Mr Justice Burton was correct on this issue.

Finally I should revert to the reconsideration made by the council in February 2003. The applicant's advisers were well aware that there was to be that reconsideration and they made comments in advance of the committee meeting. As far as one can see, the report before the council met the objections which Mr Justice Ouseley found to the previous consideration, since the respective merits of the five sites were clearly put before the committee for consideration, but the same decision was reached.

On 6 March, following that decision, the solicitor to the county council wrote to the applicant's advisers commenting on that decision. The letter referred to the expedition needed in the case and the fact that it would expire under the five-year time limit in October 2003. The solicitor wrote:

Mr Hockman before us was unable to provide any satisfactory explanation. Certainly, he did not attempt to excuse the lack of any response to that letter. Furthermore it is not even clear whether the Legal Services Commission, who are funding this litigation, were informed of the up-to-date position or of the council's proposal.

In my view this is a wholly unacceptable state of affairs, particularly when one is concerned, on the one hand, with substantial expenditure of public money on legal costs and, on the other, with a project of major importance to the traffic planning of Winchester. I would invite the Legal Services Commission to look into the matter so far as it affects their interests. So far as this court is concerned, if I had agreed with Mr Justice Ouseley's conclusions, I would have regarded it in any event as overtaken by the recent reconsideration. The failure of the applicant to take any steps to challenge the recent decision in time for it to be brought before this court, would, in my view, be a failure to act promptly and would have precluded any challenge to that decision.

For those reasons I would allow the appeal.

MR JUSTICE NELSON: I agree the appeal should be allowed for the reasons given by my Lord, Lord Justice Carnwath.

As to the duties of publicly funded parties, I would add there is a continuing obligation to report progress of proceedings to the Legal Services Commission both by virtue of CPR 1.3 whereby the parties are required to help the court to further the overriding objective and under the Civil Legal Aid Act (General Regulations) 1989, as amended. The obligation to assist the court to deal with the case justly, including saving expense, and to deal with the case proportionately requires that a publicly funded party should keep the Legal Services Commission informed of any information which may be relevant to the continuance of his or her certificate or contract. There is a specific obligation under Regulation 70 of the Regulations placed upon the assisted person's solicitor to -

The letter of 6 March 2003 from Hampshire County Council clearly demanded a reply. It should also have been sent to the Legal Services Commission or its contents made known to the Commission so that the funding of this litigation and its future conduct could be considered.

LORD JUSTICE BROOKE: I agree with both judgments. I share the concerns that have been expressed by the two other members of the Court of the conduct of Miss Murray's case with the considerable support of public funds during the last two months. I do not propose to say much more on this topic than what I said to Mr Hockman in the presence of his instructing solicitor during the course of the hearing.

These judgments must be sent both to the Legal Services Commission and to the costs judge whose duty it will be to assess the costs payable to the appellant's solicitors from 6 March 2003 onwards.

I share the view of Lord Justice Carnwath that the council's decision of 26 February 2003 totally changed the position. We do not know what the Legal Services Commission was told about the effect of the county council's open letter dated 6 March 2003. This will be a matter which the Commission and the costs judge will need to consider. If the appellant wished, on advice, to challenge the validity of the 26 February decision, too, I have no doubt that this court, if alerted promptly, could have so managed that challenge that it could have heard all the issues relating to all these decisions before the beginning of the long vacation so that everyone would know where they stood. As it was, with time for implementing the very important 1998 planning permission due to run out in October, the appellant's solicitors appeared to be content to resist this appeal first and then, if this resistance was successful, to consider mounting a challenge at High Court level to the validity of the third decision which, no doubt, could not possibly have been accommodated satisfactorily either by the High Court or by this Court before time ran out in October.

Although this was never a case appropriate for mediation, the philosophy underpinning the judgment of Lord Woolf CJ in The Queen on the Application of Cowl v Plymouth City Council [2001] EWCA.Civ 1935, [2002] 1 WLR 803 must also be taken into account in relation to the case management of this type of very expensive public law litigation involving a dispute between a public authority and members of the public who are affected by its actions. Lord Woolf CJ said in Cowl that insufficient attention was being paid to the paramount importance of saving costs and reducing delay where practicable.

In that case Alternative Dispute Resolution was the obvious option. In the present case ever since the council's decision of 26 February 2003 imaginative case management was the obvious option. But this court cannot manage cases imaginatively if a party's solicitor fails to respond at all to a very sensible letter written to it by the other side concerning the future management of their dispute, and if neither party invite this court to consider the matter and give appropriate case management directions.

The appeal is therefore allowed.