Greaves v Boston Borough Council

This is a renewed oral application for permission to appeal, in relation to a judgment of Dove J – [2014] EWHC 3950 (Admin) - in which he dismissed an application for judicial review of a grant of planning permission for installation of a wind turbine.

The application was brought by the claimants, who at the time when they commenced proceedings owned an adjacent property which they claimed was adversely affected by the grant of the planning permission. The judge dismissed the claim for judicial review on three grounds, each of which was distinct and sufficient in itself as a basis for dismissing the claim.

The three grounds were, first, that he rejected on the merits the principal contention of the claimants that a condition attached to the grant of planning permission was insufficiently certain to be a valid condition and hence that the planning permission must fail in consequence.

Further, secondly, on the evidence before him it appeared that subsequent to commencing the proceedings the claimants had sold their property and moved out of it. The new owners of the property did not indicate opposition to the planning permission or the wind turbine and did not seek to adopt the proceedings. In those circumstances the judge could identify no basis on which the claimants could be said to have standing by the time that they were actually before the court at the substantive hearing seeking relief from the court and dismissed their claim in the exercise of his discretion for that reason as well.

Thirdly, the judge identified a binding compromise agreement made in correspondence at an early stage in the proceedings whereby the claimants had agreed to withdraw the claim if the defendant accepted that no costs should be paid, and the defendant had agreed to that.

In my view permission to appeal should be refused, as it was on the papers by Sullivan LJ. I would refuse permission to appeal in relation to all these grounds both individually but, in particular, cumulatively. In my view the grounds of appeal disclose no real prospect of success on appeal and there is no other compelling reason to grant permission to appeal.

I take the reasons for the judge's decision in reverse order. So far as the compromise agreement is concerned, Mr Forsdick QC, who has appeared for the claimants on this application, accepts that there was a binding compromise agreement. But he maintains that reliance on this as a defence had been abandoned in the course of the proceedings.

In my view, however, there is no arguable case that the judge erred on this point or that reliance on the binding compromise agreement had been abandoned by the defendant. The defendant expressly relied upon the compromise agreement in their pleaded defence to the claim. At one point during the proceedings the defendant had threatened to make a strike out application based upon the existence of what it maintained was a binding compromise agreement but which the claimants were denying was a compromise agreement. In the event, the defendant decided not to proceed with that strike out application. Contrary to the submission made by Mr Forsdick, it does not follow, even arguably, from this turn of events that the defendant's express reliance in its pleadings on the compromise agreement as a defence to the claim had been abandoned. At the hearing, the compromise agreement was again identified in the submissions of the defendant as providing a complete answer to the claim and the judge so held. There is no arguable error of law on the part of the judge in relation to this ground of his decision.

Secondly, in relation to the question of standing, in my view, there is again no arguable error of law by the judge in relation to his assessment of the position on this point. Mr Forsdick says that there is no authority that a claimant can, in the course of a claim, lose standing which they had at the outset of that claim. However, in my view, in the relevant parts of the judge's decision, he identities relevant authority which supports that view and, moreover, his decision is in accordance with basic public law principle, namely that a person who seeks the assistance of the court should have sufficient basis of standing for seeking to do so at the time when they are asking the court to grant the relief which they seek. That is a requirement which applies at the time of the substantive hearing as well as at the outset of proceedings. There is no arguable error of law in the judge's assessment so far as that is concerned.

Mr Forsdick also says that as a matter of principle a victim of a public law wrong cannot be penalised if they take steps to protect themselves, as the claimants did in this case by moving away from their property. They are still entitled to seek a vindication of their interests as they existed previously.

In my view, this way of putting the matter does not give rise to any arguable case that the judge erred in his assessment. The victim is not being penalised in any way by what the judge has done. The judge has simply applied basic principles in respect of standing and public law to see whether there is a sufficient interest at the time when the court is asked to take action, such as to justify it taking that action at the instance of the claimant who is before it. There is no question of penalisation involved at all.

Finally, in relation to the underlying merits of the claim, I consider - again in common with Sullivan LJ - that there is no arguable case that the judge has erred in law in his assessment. It is clear that there were problems with the relevant condition in this case, since part of what it required to be done was, as was common ground, impossible in fact to implement. However, it does not follow that a proper and sensible interpretation could not be placed upon the relevant condition in the way that the judge placed an interpretation upon it.

Uncertainty as to the meaning of terms, including where some aspect of a term is impossible of fulfilment, is a feature which affects a multitude of different legal instruments, including statutes and contracts. The common theme in the courts’ approach in such cases is that a court is in a position to apply an amending or rather (as it is on proper analysis) a true interpretation of the relevant provision to give it practical meaning and effect in line with the clear intention of the party or parties making the instrument. Simply by way of illustration in the field of a statutory provision, one could refer to the Inco Europe case [2000] 1 WLR 586 (HL). A similar same approach applies in relation to contractual provisions.

In my view, the judge, in his approach to the relevant condition in the planning permission, has correctly applied a similar approach, which is all the more justified in light of the principle of benevolent construction of planning conditions in line with the authorities identified by the judge.

Mr Forsdick says that the level of uncertainty in relation to this condition was borne out by the fact that two experts on wind noise could not agree the relevant methodology which ought to be applied in order to determine whether there had been a breach or not of the condition. However, the judge correctly, in my view, pointed out that it is common for courts to construe terms where there is a degree of uncertainty including, as need be, choosing between what is the appropriate methodology to be applied with respect to enforcement of them as between methodology put forward by different experts. The mere fact that experts disagree does not mean that the court is disabled from giving a sensible and true interpretation of the relevant term, choosing as appropriate between the competing methodologies which are put forward.

Mr Forsdick submits that the level of uncertainty here meant that the condition was incapable of enforcement. I respectfully disagree with this. A planning authority would be able to enforce this condition. It might have to decide whether it was sufficiently confident of its own interpretation of the relevant methodology to apply to proceed to enforcement in advance of seeking guidance from the court; but even if it were not satisfied to that level of certainty in advance of going to the court and there was a dispute between it and the person against whom enforcement was proposed as to the proper interpretation of the condition, it would be perfectly open to the parties to go to the court to seek a declaration as to the true meaning of the condition in advance of enforcement steps being taken. Either way the court would be invited to interpret the relevant provision and would be in a position to do so, essentially for the reasons given by the judge.

Therefore, in relation to this ground of appeal as well, I consider that the ground of appeal gives rise to no arguable claim that the judge has erred in law.

For these reasons I refuse this application.