Meritgold Ltd, R (on the application of) v London Borough of Barnet

MR JUSTICE SULLIVAN: This is a very ancient application for judicial review. The challenge is to a decision by the defendant to decline to determine a planning application which was made as long ago as 21st January 1999. On 30th April 1999, the Council declined to determine the application under section 70(A) of the Town and Country Planning Act 1990. Section 70(A) enables local planning authorities to decline to determine repetitive applications in certain strictly defined circumstances. The circumstances are set out at paragraphs (a) and (b) in subsection (1):

Subsection (2) deals with the circumstances in which one application is to be regarded similar to another.

It will be seen that it is for the local planning authority to consider whether or not the later application is the same or substantially the same as an earlier application which has been rejected on appeal by the Secretary of State. In reaching an opinion of that kind, the planning authority has necessarily to exercise a degree of planning judgment.

The claim form contended that the authority's judgment in respect of the 1999 application was Wednesbury perverse. In assessing the force of that contention, it is helpful to set out a little of the background.

The history goes back a very long way, to October 1985, when planning permission was granted for a block of six flats three stories high. Rather than build six flats, a four-storey building containing a seventh flat on the top storey was erected. After a certain amount of to-ing and fro-ing, and various applications being rejected, and considered and refused on appeal, the Council in due course took enforcement action. An appeal against the enforcement notice was dismissed in a decision letter dated 28th August 1990. Thereafter, various attempts were made to avoid the consequences of that decision.

Applications were made to the local authority for the retention of the fourth storey, subject to various modifications or alterations which, it was contended, met the Inspector's concerns at the enforcement notice appeal. An application dated 27th March 1997 to retain the fourth storey was not determined by the Council within time, and an appeal was made. In due course, on 15th June 1998, an inspector dismissed the appeal against the deemed refusal of that 1997 application.

It will be seen that the 1999 application with which this case is concerned was made during the period of two years following the Inspector's decision in 1998. There is no suggestion in the claim form that there had been any material change of circumstance, for example by way of alteration to the development plan. The contention was simply that the 1999 application was not the same or substantially the same as the application which had been refused by the Inspector on appeal in 1998. Whether it was the same or substantially the same was pre-eminently a matter of judgment for the planning authority. Nevertheless, permission was granted to apply for judicial review.

The application for judicial review was adjourned at the request of the parties on a number of occasions, because after 1999, further applications for planning permission were made. Since they were made more than two years after the Inspector's decision in 1998, the Council had no option but to consider them.

On 16th February 2001, a further application for permission to retain the fourth story flat was made. That application was refused by the Council and an appeal was made which resulted in a decision letter dated 20th May 2002. In that decision letter, the Inspector dismissed the appeal.

On 11th November 2003, I rejected an application made under section 288 of the Town and Country Planning Act 1990 to quash that decision. The relevant parts of the Inspector's decision on that occasion are set out in my judgment and I do not propose to repeat them here. In substance, the Inspector concluded that the various alterations proposed to flat number 7, whilst they were an improvement over the existing situation, were not substantial but were in essence purely cosmetic and would not overcome the serious harm that the retention of the seventh flat would cause to the character and appearance of the area.

Notwithstanding the Inspector's refusal of that appeal, a further application for planning permission to retain the seventh flat was made on 2nd April 2003. That too has been refused, and there has been yet another appeal against refusal to the Secretary of State, which at the moment is undetermined.

Thus it will be seen that since the Council refused to determine the application of January 1999, there have been at least two further occasions in 2001 and 2003 when the claimants have had the opportunity to put forward their proposed revisions to the flat on the fourth floor to see if those revisions would overcome the planning objections to the retention of that flat. The reason for the earlier adjournments was upon the basis that these later applications might well resolve the matter.

It is plain that the refusal to determine the 1999 application has long ago become academic. Whatever modifications were proposed to the fourth floor flat at that stage, they have been overtaken by the modifications that were proposed in 2001 and 2003. In 2001, for example, it was said that the various modifications were put forward to address the criticisms made by the Inspector in 1998. The Inspector in 2002 accepted that there were some differences but concluded that they did not address the underlying concerns of the Inspector in 1998.

Thus, the claimants have had the opportunity, in simple language, to put their best foot forward, so far as making changes to the additional flat on the fourth floor is concerned, on at least two occasions since 1999. It would therefore be quite pointless to allow this challenge to proceed.

It is to be noted that the challenge invites the court to consider the factual question: whether one planning proposal is the same or substantially the same as another. Given the expertise of the local planning authority in that field, this would have been a particularly difficult hurdle for the claimant to overcome in any event, even if the claim had not become academic.

For the sake of completeness, I should mention that Mr Miller, who appeared on behalf of the claimant, had been instructed upon a very limited basis. He had no instructions as to the merits of the matter, he had simply been instructed to apply for an adjournment. I refused the adjournment. I reiterate the reasons why I did so.

This application was listed for hearing today as long ago as 25th November, shortly after I considered this claimant's challenge under section 288 of the Act to the Inspector's decision letter dated 20th May 2002. It is to be observed that on that occasion, counsel instructed by solicitors on behalf of the claimant, Mr Dagg, asked for an adjournment. Like Mr Miller, he told me that he had been instructed at very short notice and that his instructions were confined to seeking an adjournment. I declined to grant an adjournment and indicated that I would be prepared to hear arguments on the substance of the matter in the afternoon. Mr Dagg returned at 2 o'clock and said that he had no further instructions. It should be noted that Mr Dagg was instructed by Lawson George solicitors.

So far as this application is concerned, nothing appears to have been heard from the claimant's solicitors, Lawson George, until a letter of 19th January 2004 which said amongst other things:

No explanation is given as to why Lawson George, who had been instructed by Meritgold on the related section 288 application in November 2003, had only just been consulted by Meritgold in respect of this application.

The Administrative Court Office responded on 22nd January making it clear that the application for an adjournment would not be granted administratively, and that if any application were to be made, it would have to be made to the trial judge today. Notwithstanding that application, it would appear that the claimant has chosen not to provide his solicitors with any further instructions. I say that because, as with Mr Dagg in November, I gave Mr Miller the opportunity to obtain further instructions and to come back to deal with the merits of the matter this afternoon. The merits of this case are within a relatively short compass. It is not the sort of case where detailed instructions and complex points of law arise. There really is a very short point: what is the purpose of the 1999 application, given the subsequent applications in 2001 and 2003?

In any event, when Mr Miller returned at 2 o'clock, he told me that he had been instructed by his instructing solicitors that they themselves had no instructions. It is the responsibility of Meritgold to make sure that its solicitors are properly instructed. There was no excuse for not instructing them earlier than 19th January, and following the Administrative Court's response, there was certainly no excuse whatsoever for not providing them with instructions to enable them to deal with the substance of the application today.

For the reasons that I have set out, I am entirely satisfied that if, and I underline if, and insofar as there were any points of substance in this claim, they have long been overtaken by events, and the application has for some time now been wholly academic.

For all these reasons, this application for judicial review must be refused.

Thank you. Yes.

MR LANGHAM: My Lord, I obviously ask for an order of costs. There is a schedule for costs. I do not know whether that has reached your Lordship.

MR JUSTICE SULLIVAN: I do not think it has, actually, no.

MR LANGHAM: That I think is one document that my learned friend does have.

MR JUSTICE SULLIVAN: Yes.

MR LANGHAM: It is broken down, and your Lordship sees the total: £4,743.40. I merely observe that although I have not said a great deal, it is of course necessary to prepare.

MR JUSTICE SULLIVAN: It is a full application, is it not. One has to prepare. Yes. Let us have a look. Yes. What do you want to say about that, Mr Miller?

MR MILLER: Well, I think it is fair on behalf of my client to take what points I can.

MR JUSTICE SULLIVAN: Of course. First, your solicitors should have had the schedule 24 hours or so before. I am not sure that that was done.

MR LANGHAM: Yes, it was.

MR MILLER: I received a copy from my solicitors.

MR JUSTICE SULLIVAN: So you have had an opportunity at least to take instructions on this?

MR MILLER: My Lord, yes.

MR JUSTICE SULLIVAN: Thank you.

MR MILLER: I think looking at the points in detail, there are two that I pick up. The travelling time: I assume that the solicitors come from Barnet to Central London, which is what the travelling time is. They seem to have taken a needlessly long time about it. I think that item should be reduced. Perhaps an hour each time would be more appropriate.

MR JUSTICE SULLIVAN: Two and a half hours. I think that is getting them here and back again, is it not?

MR LANGHAM: My Lord, yes.

MR JUSTICE SULLIVAN: I know the area, and I am bound to say, they are doing it quite well if they only take an hour and a quarter to get down here and an hour and a quarter back again. Anyway, that is your point. Maybe I should not use local knowledge to say whether it takes two and a half hours to get out from Barnet to the RCJ and back again.

MR MILLER: The other point of detail: there is an item for a skeleton argument. I always understood that skeleton arguments were included in the brief fees.

MR JUSTICE SULLIVAN: I think there may well be a point in that. Insofar as they are not, then the brief fee is correspondingly reduced, because counsel has done the work.

MR MILLER: The only point in the White Book I could find about it was the note at 47.14.10 on page 1083.

MR JUSTICE SULLIVAN: I have it.

MR MILLER: That is a slightly different point, because that is a quotation from Chohan v Times Newspapers Ltd that refers to written closing submissions, but to some extent it coincides with what I must admit I thought was the situation: that written closing submissions are like openings submissions as well as arguments, generally not a separately chargeable item. Those are the two points of detail.

My only other point, just taken in the round, I know that my learned friend has had to prepare for what may well have been a full hearing, but nonetheless, taken in the round, £4,700-odd just seems disproportionately high, and a figure of around about £2,500, in my submission, might have been a more reasonable figure.

MR JUSTICE SULLIVAN: Mr Langham, without wishing to embarrass you in any way, it had been my understanding that preparing for the skeleton argument ought to be included in the brief. Your preparation is largely in the skeleton. Would that be right?

MR LANGHAM: I have to confess, that had been my understanding, but had that been carried through, the briefing would have been £750 higher. In other words, there was no double counting. I do make that point.

MR JUSTICE SULLIVAN: I am not suggesting that there is double counting. I think it may have resulted in something that is slightly OTT. I do not mean that in any critical sense, but just looking at the general run of these sort of cases. Yes, thank you.

Bearing in mind what Mr Miller has submitted, I think there is a fair point that the costs of the skeleton argument and the brief, if looked at together, could be somewhat reduced. I say that without criticising anyone. I think the sensible thing to do, looking at it in round figures, is to reduce the £4,740.30 to £4,000. That, in my judgment, is a reasonable figure bearing in mind the normal order of costs in challenges such as this, and bearing in mind that this was a case where the defendant had, as it were, a more than usually onerous burden precisely because the claimant had failed to put in any material at all, and so it was essential for the defendant to put in the background material, the chronology, and so on and so forth. I think that even bearing those matters in mind, a figure of £4,000 is a reasonable figure for assessment of the Council's costs.

So application for judicial review dismissed. The claimant to pay the defendant's costs, those costs to be summarily assessed in the sum of £4,000.

Thank you both very much indeed.