Furness, R (on the application of) v Chief Executive Brighton & Hove City Council

MR JUSTICE NEWMAN: The applicant, John Nigel Patrick Furness, appears in person, assisted by a McKenzie friend, Mr Abrahams. He applies to quash parts of the Brighton and Hove Local Plan. The power of this court to entertain such an application is contained in section 287 of the Town and Country Planning Act 1990. The procedure is by way of a statutory review. It is not an appeal. The court has the power to quash the plan, in whole or in part, on a ground of law.

Section 287(1) provides that the person aggrieved can question the validity of the plan on the ground:

Subsection (2) provides for the powers of the court and in its material part:

The plan with which we are here concerned was the product of the procedure which had to be followed under the Town and Country Planning (Development Plans) Regulations 1999. The regulations give rise to a four stage process of public involvement in the making of such a plan, or indeed materially altering it. Firstly, there is the first deposit of the draft local plan. Secondly, there is the second deposit of the draft local plan. Thirdly, then consideration of objections at a public enquiry follow. Fourthly, deposit of a list of recommendations of the inspector which the local authority intend not to adopt and the reasons for not doing so and the modifications they intend to make in the light of the public enquiry. The council has a discretion to hold a public enquiry into objections made and to propose modifications. That does not arise in this case. There being no public enquiry, the council should prepare a statement of their decisions as respect all the objections and their reasons for each decision.

It is to be noted that the Secretary of State has supervisory powers in relation to the making and adoption of local plans. He has the statutory power under the 1990 Act, section 43(4), to direct the council not to adopt a plan where he considers that it is unsatisfactory. He can make a direction for it to be modified. The council can be prohibited, as a result, from adopting the plan until it has been modified.

It is relevant to note that so far as the Brighton and Hove Local Plan is concerned there has been no such direction by the Secretary of State and as a result it is a pointer by way of inference that he found the local plan to be satisfactory.

The parties are in common agreement that under the Town and Country (Development Plan) Regulations 1999, section 12(6) in particular, that the local authority's duties in preparing the plan require them to have regard to:

The power exercised by the court in the making of this application has received judicial attention at the highest level. For that reason it is material to note from the outset what was said in the House of Lords in Westminster City Council v Great Portland Estates Plc [1994] AC 661. That, of course, was under the prior legislation providing for this form of legal review. The point which needs to be made, since it is one of those at the forefront of the claimant's arguments, is that the House of Lords there had to consider a situation where it appeared from the plan that office development, which was outside the council's central activities zone, was, according to the plan, to be controlled by non-statutory guidelines upon which there had been no public consultation.

This led Lord Scarman to say at page 674 at D:

The claimant's complaints, so far as they can be drawn together into categories, appear to be best described as follows. 1. Complaints that contrary to PPG 12 the plan contains references to SPGs and planning and development briefs in circumstances where the law requires it not to do so. For example: (a) because an SPG is referred to which does not exist, or did not exist, at the time the plan was before the inspector, and it follows, even if now a SPG does exist in connection with such policy, the SPG has come into existence since the inspector's report; (b) referred to SPGs which themselves did not contain proper cross-referencing to the relevant policy in the plan; (c) referred to an SPG which did not have attached to it a record of representations received and responses made in the form of an annexe, or schedule, or document, which, by inference, it is said should have formed part of the SPG; (d) referred to no policy at all and only contained a reference to a SPG, or planning brief, or so forth; (e) that the defendant council failed to follow recommendations of the inspector in at least two respects: (i) in failing to delete references to a development planning brief and (ii) in another respect failed to fulfil a recommendation in relation to one part of the policy, which, on the inspector's recommendation, called for greater particularity in connection with views and vistas.

It seems to me that, but for the category I have endeavoured to formulate relating to failure to follow recommendations, that the complaints fall within 287(1)(a), but that the complaints about, in effect, the adequacy of the reasons given by the local planning authority for rejecting an inspector's recommendation arguably come within subsection (1)(b) because there has been a failure to comply with some procedural requirement. See, in particular, the cases cited in volume 2 of the Encyclopedia of Planning Law and Practice P287.19. The significance of that is that in connection with a failure to comply with some statutory procedural requirement it is incumbent upon a claimant to demonstrate substantial prejudice has been occasioned by the failure. Despite this analysis and an attempt to fit the complaints into the subparts of section 287, it seems to me that ultimately the result on this application turns, not so much upon the categorisation of the complaints, but upon their merits.

It is obvious that PPG 12 is central to the claimant's case. The arguments largely give rise to questions of interpretation of PPG 12. What may be helpful at the outset to emphasise is that PPG 12, which it is accepted the authority had a statutory duty to follow, states what the government requires in connection with local plans. The need for local plans, as is well-known in the planning field, was driven by the government's commitment to turn the planning system into one which was plan led. The advantages of that are obvious. So far as the public are concerned it means that there is transparency in planning matters because authorities are required to lay out their planning proposals, but without the creation of a straitjacket. The plans need to be prepared and updated speedily and efficiently. What is particularly noteworthy in my judgment is that PPG 12 emphasises:

The policies have to be limited to strategic policies and proposals. The aim of that is that there should be an appropriate framework for local plans and development control. That, therefore, leads on to the other aspect of the plan which sets out the local authority's policies; those which require legislation and the general location of individual major and strategic developments which are likely to have a significant effect on the planning area.

PPG 12, as one might expect, having regard to the attention which it has been given in the argument in this case, has under the heading "supplementary planning guidance" the following paragraphs. Preceding that, at 3.14, at the following introductory comment:

On reading the claimant's case it appeared, certainly at first reading, that possibly the claimant was suggesting that there should be no reference to supplementary planning guidance in the local plan. That remained my impression until the argument developed. In fairness, I do not believe that that was the major principal, bald point which was being made. If it was, in my judgment, it is plainly wrong. It seems to me to be obvious from what I have read so far from PPG 12 that there can be references to supplementary planning guidance in a plan. The arguments which have been advanced seem to me to turn on individual points connected with the nature of the SPG, to which reference is made, and the content of the local plan when such a reference is made. Again, for clarity, I do not understand there to be any material distinction drawn between supplementary planning guidance, as in SPG, or development or planning briefs which are another variety of supplementary planning guidance. Insofar as there is a challenge or complaint about them, it embraces the varieties of supplementary planning guidance.

Now to paragraph 3.15 of PPG 12:

It will now be sufficiently clear as to how it is said by the claimant that PPG 12 has not been complied with. The individual complaints include the complaint that the SPG should be clearly cross referenced to the relevant plan or proposal which it supplements. It should be issued separately from the plan and made publicly available. Consultation should be undertaken and the status of the SPG should be made clear. Further, that the SPG must not be used to avoid subjecting to public scrutiny the policy proposals. The policies should not be drawn so as to, in effect, when read, lead one to conclude that policy has been delegated to the criteria which are contained in the SPG or development briefs.

In my judgment, from the parts of SPG 12 to which I have referred, the nature and purpose of a SPG sufficiently appears. It is plain that the statutory controls on the planning authority enable the planning authority to exercise a judgment, which is pre-eminently for the authority to work out, as to how they best present their policies having regard to the need to avoid excessive detail, to leave the matter clear so far as the policy is concerned, and, of course, to have in mind the evolutionary nature, which, in my judgment, the legislation envisages, for the detailed occasions on which particular developments will fall for consideration in its implementation of the planning policy.

The status of a SPG is distinct from a policy contained in the plan. The public interest is protected, so far as the SPG is concerned, by the requisite consultation process which has to be undertaken in connection with supplementary planning guidance. I may have misunderstood the point, but part of the argument for the claimant might have involved the contention that in order for a SPG to be referred to properly in a local plan, there had to be public scrutiny and consultation in connection with the SPG at the stage when the inspector considered objections to the local plan. That, in my judgment, is not correct. The SPG, as I say, is a separate matter from the plan and, most importantly, it does not form part of the plan, although there will be the occasions when the planning authority elects to refer to the SPG in the plan.

That the SPG itself should contain a clear cross reference to the relevant plan, policy or proposal which it supplements is entirely clear from paragraph 3.15. But in my judgment, since the SPG does not form part of the plan, such procedural non-compliance which that might give rise to will not in the usual course touch the validity of the plan itself. I emphasise that I have deliberately chosen the words "in the usual course" because there might be a situation in which the terms of the plan and the terms of the SPG give rise to considerations other than those which do arise in the usual course, and more particularly other than as they arise in this case. Again, it seems to me since the two exist apart and the fact that the local plan has, and indeed must have, for the purposes of the flexibility an evolutionary character to, it that there is nothing in principle which offends PPG 12, or which renders the plan itself contrary to the powers of the local authority, if reference is made either to an intended SPG, or by some other future reference to a SPG which at the date of the plan before the inspector is not available. That, seems to me, apart from anything else, a matter which arises from a proper statutory interpretation. I take comfort from the fact that that is plainly the position which the inspector took, since it was obvious to him that references were being made to future supplementary planning guidance.

With those statements and conclusions being stated, it is necessary for me to turn to the specific complaints which the claimant, with assistance from Mr Abrahams, has prepared for the court. I am bound to say that I am very grateful to the claimant, and, in so far as he has been assisted by Mr Abrahams, to him as well for the careful and thorough manner in which they have prepared matters in writing for the court. I confess that without the assistance of both of them orally and the assistance of the skeleton argument and all the submissions of Miss Macpherson much of this had an intractable and complex aspect when considered on the papers. But it now seems to me that one can take the case and, so far as it remains necessary, make specific comment on nine instances when it is said that the sections of the Brighton and Hove Local Plan containing references to SPGs, or an equivalent, should be removed.

The first is in relation to SR 24, previously numbered SR 26, namely the King Alfred/RNR site. It is said in relation to that that the inspector recommended that references in the main plan policy and in section 6.99 should be deleted. The inspector's report in this regard contains in paragraph 7.102 (last sentence of that paragraph) a reference as follows:

In the next paragraph he refers to the fact that at the date of writing the report and the closure of the enquiry he was aware that the council were considering a particular development, a subsequent proposal, for the King Alfred Sports Centre. He says at the end of paragraph 7.103:

He has to acknowledge, as is obviously the case, that the public consultation which had been carried out in 2002 was as a result irrelevant.

He says in paragraph 7.105:

Then 7.106:

Then in 7.107 he states, and this is the critical sentence:

Then under "recommendation" at 7.108:

The state of affairs, so far as this is concerned, is not in dispute, in that what he recommended to be excised was not excised. The preliminary observation, and indeed it is put rather more significantly perhaps than an observation, but as a point of substance when considering the circumstances in which the recommendation has not been followed, is that it is not entirely clear from the report why the inspector was recommending excision of the reference to the planning brief in the policy. One possible view entertained by the court, and as Miss Macpherson stated initially, was that perhaps the inspector recommended excision because the planning brief was no longer of relevance having regard to the proposed changes, but that, after further consideration, does not appear to be a good reason. The reason advanced by the claimant is that Mr Morris Abrahams, who was an objector at the enquiry, drew particular attention to this part of the plan and to the argument which I am currently considering, and that it can be inferred that he recommended that the references should be excised because he was moved by the argument. That may be so. If he was, it would have been better had he said so.

As a result, among the reasons for the authority not adopting his recommendation, it is said that, in the absence of a satisfactory reason being apparent from the report itself, the local authority after due consideration concluded that it was editorial. To that by way of response the claimant suggests, well, that is not the proper way to deal with it. If there was doubt about why the recommendation for excision was being made, then the sensible course would have been for the local authority to write to the inspector and ascertain the reason why it was so recommended.

They did not do that, but they did give reasons. One reason was that:

Next, they said his comment was understood to be editorial, referring to the fact that the council had repeated itself by making the reference twice, both in the text and in the policy. What is said against the local authority is that, even if these reasons are clear, they are not sufficiently cogent ones for failing to comply with the recommendation.

In this particular part of the case, as I have already indicated, the statutory scheme plainly accords to the local planning authority a considerable measure of discretion in deciding how it best presents in a succinct form its policy and how it brings in as supplementary material any detail which it considers irrelevant.

I have concluded that, in the absence of any telling reason why the inspector recommended the excision, that it is sufficient for the authority to conclude that they consider it as a necessary component of the criteria against which any development proposal will be assessed. It is obviously of assistance to developers to know if they can be so informed of the criteria. This does not seem to me to be an example of anything offensive to PPG 12 in the sense in which the claimant has otherwise argued the plan is offensive to PPG 12. It is very much an argument which falls within the second limb of section 287. If the claimant had been able to pinpoint something which was clearly in the mind of the inspector, other than the extent to which he may have been influenced generally by what Mr Abrahams had said, then the position might have been different. But the position which Mr Abrahams was taking was, in effect, no different to that which has been reflected to this court through Mr Furness today, and I am left in the position of being satisfied that, even if I was wrong in connection with this part of the case, I can find no possible basis for concluding that Mr Furness was substantially prejudiced by this part of the plan. As I say, my principal satisfaction is that it seems to me, certainly reasonably plain, that one or other of the reasons given by the authority for doing what they did are sufficiently clear and cogent reasons for adopting the course they did.

However that does not finish the whole issue in connection with King Alfred because it is said also in connection with King Alfred that there is now a sports brief. The sports brief does not have a cross reference, nor is there any annexe or separate document in which the representations and so forth, in accordance with 3.16 of PPG 12, appear.

As to this point Miss Macpherson has submitted that on a proper reading of PPG 12 3.16 it is not clear that the representations and responses have got to be included in a document which is attached to the supplementary planning guidance. She submits that, since it suggests that they can be in a separate document, there is no reason why they cannot be available in the form in which she says they are available, namely on request to the local authority.

Again it seems to me that certainly it is contemplated when it talks about an annexe that there will be one document. For reasons which will perhaps represent better administration, subject, of course, to any resource considerations, it seems to me that the object of informing the public will be more likely to be satisfactorily achieved if they are annexed to the SPG rather than being yet something else which some member of the public has to request. I am sure it is not the reason why, but assuming one is not being exorbitantly irresponsible in connection with resources, indeed world resources, paper and the environment, only to make it available if some member of the public bothers to ask for it may be a view which could be reconsidered. But even though that observation has fallen from the court, I should make it clear that that cannot, in my judgment, lead to a position in which the plan itself by reason of that frailty in the SPG is susceptible of being quashed. On any basis that would be a disproportionate exercise of the court's power in respect of this aspect of the matter.

It is also said in connection with a development brief which now does exist, SPG/BH, that there are details which should have been in the plan which, in effect, by the detail in which they appear in the SPG, had been delegated. It is said that nowhere in the plan is there any indication given of the scale and type of sports facilities which will be available, or whether they will take precedence over commercial facilities. It is said by way of example that this means that you can have a range of activities from a table tennis room to an Olympic size swimming pool or a full size running track. It is said you would not know, without going to the development brief, or sports brief, in order to understand what was within the policy.

This, it seems to me, is a very good example of a situation where what dictates the true result is the distinction drawn between policy and detail and criteria. In my judgment, to have a plan which was in some way to anticipate or to contemplate a whole range of permissible developments which could take place in accordance with various criteria would simply lead to a position in which the plan was exactly that which PPG 12 says it should not be, namely containing excessive detail. It seems to me to be a very good example of the convenience that there can be in making the supplementary material available by way of criteria in respect of the development which can change, obviously, in its precise terms in accordance with the aspirations and commercial aspects of the proposed development. So I do not accept the criticisms which have been made in relation to King Alfred as leading to a situation where this court should grant relief.

I must now turn to what is headed TR 19 and parking standards. This is an example of another complaint. What is said here is that if you look at the adopted draft, page 7 of the bundle, what you find at TR 19 is as follows:

So, Mr Furness submits, there is a classic example of the plan in fact in this material respect being turned on its head: instead of policy, no policy at all. There is a reference instead to supplementary planning guidance. He says there is not any planning policy in this regard and therefore this should go.

The local authority's response to that is that it is obvious that there is indeed policy in connection with parking standards because there is reference to the very policy documents if you turn to page 303 where the supplementary planning guidance itself appears. For example, on page 303 it says:

Thus Miss Macpherson submits there is a policy, the policy is there referred to, and the part of the plan which the claimants refer to had simply been misinterpreted by them. She submits that further in support of that is the inspector's report in relation to this, TR 17 at page 38. In relation to that, having considered objections, the inspector makes this appraisal:

So, she submits, that is sufficient answer to the point under TR 19. I agree. 9A falls under the same heading and thus falls out of account.

I come to shop shutters. Shop shutters give rise to a reference to supplementary planning guidance in the form of a leaflet called "shop security grills and alarms". It is said:

This is, in fact, a new SPD shop front design that is referenced to plan QD 8. That is dated 8th September 2005 after the original objections were raised. It is said that that does not comply with SPG 12.2.4.3 which states:

In my judgment I should deal with the matter as it is raised in connection with the leaflet. It seems to me to be clear, and indeed, again, the inspector was satisfied in connection with this, that no modification was necessary. His conclusion was that the policy has a legitimate and needed place in the local plan and will improve the look of a much visited city which needs to present its best face to the world.

Then under "appraisal of shop fronts":

Indeed, they have gone ahead, following the recommendation, and produced some better guidance.

In my judgment, again, this matter does not lead to any basis upon which the plan itself can be impugned and in this respect quashed.

Then next HO01, housing mixed used sites. This is a good example of what I have covered in general principle. There is a statement "to accord with future development brief". For the reasons I have already foreshadowed this is not a complaint which, in my judgment, can succeed in impugning the plan. Equally, the same applies in relation to EM 12 Shoreham harbour, and similarly in relation to the SR 19 Black Rock site, where there is a reference to a development brief and a water sports strategy, but there is apparently no water sport plan in the local plan. There is a request that that should be removed. But the specific argument which is also raised in relation to Black Rock and TRT Public Transport is that the plan itself contains only a reference to supplementary guidance without due reference to policy. The answer to that is, as I accept, simply a misreading of that section, page 12 and 13 of the bundle, where one can see that the policy is in sufficient terms set out in the heavy typescript and the supplementary detail in the lighter script, and in particular at 6.78.

Travel plans is the last specific heading. There is a reference to SPG Transport and that it does not exist. For the reasons I have already given, that seems to me not to give rise to any illegality justifying quashing any part.

I now turn to the next and discrete complaint which is made which can be called the tall buildings complaint. This has some connection with QD 4 design and that part of the inspector's report which I have already quoted. The complaint which is advanced on this score is that the inspector stated:

It is said in context that this should properly be understood as a suggestion on behalf of the inspector that they should expand on the policy of the protection of views and vistas. What is said is that the SPG which has been produced is all about tall buildings and building densities. It has been prepared not really as a response to the inspector, but in response to current urban policy agenda and it really is concerned to study and assess whether and where tall buildings might be acceptable. It is said there is no mention in the policy section of the protection of views and vistas. There is only a passing reference to them and not to their protection and in a few lines in a paragraph of the document. Then there is detailed citation by reference to the contents of the document, which, it is said, demonstrate that they have not responded to the recommendation of the inspector, but have really been driven to produce the document by reference to density in reply.

In reply the authority submit that the SPG 15, which is the tall building SPG, relates to the preservation of strategic views, important vistas, the skyline, the setting of landmark buildings, which are all mentioned in the policy, and it requires a tall building statement to accompany every planning application for such a building. There was, it is said, an extensive consultation process in connection with SPG 15 and the document can properly be seen as a response to the recommendation of the inspector. But it is said, even if it is not, it was only a recommendation and the local authority have done sufficient by the content of the document itself to demonstrate where they stand in connection with this and there can be no case in which this claimant can demonstrate substantial prejudice as a result of the particular state of affairs in any event.

I am not persuaded that the inspector from the content of the report such as is relevant to this had in mind any specific form of SPG other than in the broad terms in which he expressed it, namely some form of expansion on the policy would be useful. It does not seem to me that it is irrational of the local authority to regard a SPG which deals with tall buildings and lays down criteria for development in connection with tall buildings to be an inadequate means of maintaining where necessary the vistas and views. To anyone familiar with the problem in connection with a local authority such as Brighton and Hove with an extensive waterfront area, it is obvious that the existence of tall buildings by way of development in Brighton and Hove along the waterfront will be likely to affect vistas and views, namely the vistas and views of the sea, so far, also, as the area, the vistas and views of the back land area of the Downs.

I do not understand how a stylistic analysis of the tall buildings SPG can of itself lead to a conclusion that there is a sufficient public law challenge to this aspect of the supplementary material which the SPG now represents in connection with the development plan. For those reasons I see no basis for concluding that there is a public law challenge made out to quash this part, or any part, of the plan.

Unless I have neglected some particular head of challenge, the range of complaints which have been advanced, as I say with clarity and measured argument, do not succeed. Thus this application under section 287 of the Town and Country Planning Act 1990 fails in limine.

MR JUSTICE NEWMAN: Thank you both very much.

MISS MACPHERSON: My Lord, I am very grateful. I am instructed to seek our costs. My Lord, I have shown the claimant a schedule of costs which I have here. May I hand it up?

MR JUSTICE NEWMAN: Yes, of course.

MISS MACPHERSON: My Lord, your Lordship will see that the total, which takes account of my instructing solicitor's time and my own instructions, totals £9,963.75 and that includes £463.75 in respect of my fees. The council's charges do not attract VAT.

MR JUSTICE NEWMAN: Just help me, are you in independent practice as a member of the Bar?

MISS MACPHERSON: I am a member of the Bar. I was in 2 Mitre Court Buildings, which, as you probably know, my Lord, dissolved two years ago, and I opted, since it won't be long before I retire, to go it alone at home and my clients have been good enough to stay with me and I am still practising.

MR JUSTICE NEWMAN: So you practise from home?

MISS MACPHERSON: Indeed.

MR JUSTICE NEWMAN: You are instructed, of course by the solicitors to --

MISS MACPHERSON: I am formally instructed.

MR JUSTICE NEWMAN: -- by the solicitor to the local authority.

MISS MACPHERSON: Indeed. Of course, because I don't have any overheads, my Lord, I am able to adjust my fees accordingly.

MR JUSTICE NEWMAN: Yes. Thank you very much. Well, Mr Furness, you have seen this schedule I take it.

THE CLAIMANT: Yes.

MR JUSTICE NEWMAN: And what would you like to say to me about that? There is, first of all, a matter of principle, then the amount. Do you resist an order for costs being made against you?

THE CLAIMANT: Yes, we do.

MR JUSTICE NEWMAN: On what grounds?

THE CLAIMANT: Well, we were trying to get legal aid. May my friend speak?

MR JUSTICE NEWMAN: You can take advice from him as you have done hitherto.

THE CLAIMANT: I quote the statement of truth by Morris Abrahams:

MR JUSTICE NEWMAN: I am not at the moment concerned as to why you haven't got legal assistance, although I might have some questions to ask in a moment as to how this has come about. What I am asking at the moment is, even if you had had legal assistance and the result would have been as it now is, your claim has failed, there would have been an application for costs by Miss Macpherson for the authority for you to pay. You are the litigant in this piece of litigation. So my first question to you is: why, and on what basis, can you resist an order for costs of the local authority, which are in round terms £10,000 --

THE CLAIMANT: I have no money.

MR JUSTICE NEWMAN: -- being made against you?

THE CLAIMANT: I have no money. I am Disabled. I am on benefit.

MR JUSTICE NEWMAN: That is neither here nor there. You have brought the litigation and you have been assisted by Mr Abrahams and he apparently represents a residents association. What I, for the moment -- you perhaps don't follow, but I am doing my best I hope to explain to you -- when you bring a piece of litigation and cause the other side to incur costs you take the risk that if you fail you pay their costs. Now, you presumably understood that.

THE CLAIMANT: I had assumed that legal aid was involved.

MR JUSTICE NEWMAN: No, if you get legal aid you might have your costs paid for, namely any lawyer who represents might be paid for, but that wouldn't necessarily lead to a position where there wouldn't be an order for costs against you because that is the important restraint that has to be imposed, otherwise this is public money which has been spent in properly resisting the claim, and now successfully resisting the claim. Miss Macpherson has gone to great pains to spend time and the local authority have entertained your claims and treated them with respect and seriously and public money has been expended. Now, it is very difficult to see why you shouldn't pay the costs.

THE CLAIMANT: I am afraid I have not been made aware of this fully, sir, I have to say.

MR JUSTICE NEWMAN: All right. I am sure Mr Abrahams would be aware of the position.

THE CLAIMANT: My friend is not aware of all the legal details.

MR JUSTICE NEWMAN: Well, what I haven't quite understood is why you are, as it were, the front man in this litigation, because it has been perfectly plain to me that that Mr Abrahams has been to a large extent a thinking and working mind --

THE CLAIMANT: Indeed, sir.

MR JUSTICE NEWMAN: -- in this process. He has also historically been an objector and I don't for the moment know why he didn't come here as a claimant, or jointly come as a claimant with you, and if he was in fact representing a residents association it would have been that form of litigation in which the residents could have come together, clubbed together, either to have a fund, a fighting fund, to instruct a lawyer and indeed to have a fighting fund which was sufficient, in the event that you lost, to pay the costs. So I am afraid it is very unsatisfactory to have you both here, active as you have both been, and as I hope fairly have already commended both of you for the way in which you have prepared it, but, nevertheless, this local authority have been put to considerable expense. If you are ordered to pay £7,500 costs are you saying you haven't got any resources at all?

THE CLAIMANT: I have not, sir. No. That is fact.

MR JUSTICE NEWMAN: What, no capital at all.

THE CLAIMANT: No, sir.

MR JUSTICE NEWMAN: Do you own a house?

THE CLAIMANT: No, I don't. I rent a flat.

MR JUSTICE NEWMAN: You rent accommodation. What is your income?

THE CLAIMANT: I am on disability benefit, sir. Disabled. I was asked to represent this case because I can, at the risk of sounding arrogant, put things across. At the risk of sounding arrogant I was asked to represent this case to put things across.

MR JUSTICE NEWMAN: Who asked you to represent this case?

THE CLAIMANT: Mr Abrahams.

MR JUSTICE NEWMAN: Why didn't he do it himself?

THE CLAIMANT: Because Mr Abrahams is a nut and bolts person. I am not. He does realms of behind the scenes paperwork. That sort of thing.

MR JUSTICE NEWMAN: So have you in fact been asked to represent him as a form of advocate, is that it?

THE CLAIMANT: No, not really. No. I was quite happy to go along with putting up the case but I did assume that legal aid was --

MR JUSTICE NEWMAN: But you have used the words "I was asked to represent"?

THE CLAIMANT: Perhaps that's not a proper form of words.

MR JUSTICE NEWMAN: No, what did you really mean?

THE CLAIMANT: What I meant was, yes, that I believed in exactly what I have said in this court here. I don't deal with nuts and bolts of things. I have been staggered by the outcome of this I have to say.

MR JUSTICE NEWMAN: Well, you may be staggered but it can't have been an outcome which you didn't contemplate could occur.

THE CLAIMANT: I was told it wouldn't occur. Sorry, sir, but that is the fact and that is the truth. I did ask yesterday about this, and, you know, I am just -- I am absolutely amazed by this. I had understood that everything was put in place.

MR JUSTICE NEWMAN: And that you were bound to succeed?

THE CLAIMANT: No, not bound to succeed, sir. Partially succeed. Possibly more than partially succeed.

MR JUSTICE NEWMAN: And not to have pay any costs? Is that what you were told?

THE CLAIMANT: Well, yes, this is what I understood.

MR JUSTICE NEWMAN: Who told you that?

THE CLAIMANT: I spoke to Mr Abrahams about this yesterday, yesterday afternoon in his house and I said what about this legal aid thing. May be I have been a complete fool in that respect because I trust people to take care. I am not a nuts and bolts person. I am not afraid to stand up and put forward a case but I am not the sort of studious --

MR JUSTICE NEWMAN: Why? Have you done it in the past?

THE CLAIMANT: Not this sort of thing in the past. I am talking as a person who can put things across.

MR JUSTICE NEWMAN: What did you do before you were disabled? What was your occupation, career?

THE CLAIMANT: I used to be a civil servant. I was an officer of HM Customs and Excise and a trade union official and also I ran my own business for a while, but that went down the drain slowly as all my money went on trying to have a treatment for an incurable condition.

MR JUSTICE NEWMAN: And you are a resident, are you, of Brighton and Hove?

THE CLAIMANT: Yes, Hove, all my life.

MR JUSTICE NEWMAN: Mr Abrahams is obviously too?

THE CLAIMANT: Yes. Yes.

MR JUSTICE NEWMAN: Is there anything more you want to say for the moment?

THE CLAIMANT: One moment, sir. (Pause). I am sorry, sir, there is nothing more I can personally add to that.

MR JUSTICE NEWMAN: I did overhear Mr Abrahams suggesting an appeal.

THE MCKENZIE FRIEND: I said if we had money we would.

MR JUSTICE NEWMAN: This court sometimes can take steps to ensure that local authorities who are trustees and responsible for public money should not be put in a position where they are subjected to further costs by threats of appeal from those who are simply not in a position to pay their costs in the event that the appeal is unsuccessful.

THE CLAIMANT: I would agree, sir. It wasn't me that said that.

MR JUSTICE NEWMAN: It is unfortunate that I heard it, but I did.

THE MCKENZIE FRIEND: I specifically said "if we had money". I did not say we were going to appeal.

MR JUSTICE NEWMAN: Thank you. Sit down for the moment. Now, Miss Macpherson, help me a little bit on this.

MISS MACPHERSON: Yes, my Lord.

MR JUSTICE NEWMAN: You have heard what Mr Furness has to say.

MISS MACPHERSON: Yes, my Lord.

MR JUSTICE NEWMAN: I don't know, may be there is -- I don't know whether there is a history here, or what the relevant background is as between Brighton and Hove Council and Mr Furness and indeed Mr Abrahams, but obviously if they have been alive and active, as it were, in connection with this local plan for some years, and those instructing you will be aware of what is being said.

MISS MACPHERSON: Yes, my Lord.

MR JUSTICE NEWMAN: Do you want to take instructions as to whether they want an order for costs which may prove to simply lead to no recovery at all, or perhaps some form of bankruptcy order against Mr Furness, or what? Do you want to take instructions in connection with that?

MISS MACPHERSON: Yes, my Lord. Thank you.

MR JUSTICE NEWMAN: Before you say anything, I should say that in the usual way you have succeeded. Your clients have succeeded. They are entitled to an order for their costs. One way forward is that there is an order for costs and it is a matter for your clients to decide whether or not they choose to enforce it. But I am also very anxious to ensure that your position is protected. What is it that your present instructions enable you to say?

MISS MACPHERSON: My Lord, my present instructions are that the council would not wish to go so far as an order for bankruptcy, but they would wish to have an order which would put them in a position of being able to recover costs. And, my Lord, I am instructed to add that it would appear from what has transpired since your Lordship's judgment that the position that was represented by Mr Furness back in about April, when he said that he wasn't able to appear at the court at an early date because he needed to seek a McKenzie Friend, we were then told that the McKenzie Friend is Mr Abrahams, who owns a house in Brighton, and it would appear now he was asked by Mr Abrahams to speak for him, and it would appear, my Lord, obviously Mr Furness name's is on the claim form, but, my Lord, if one were to go behind the name on the claim form it would appear in effect that Mr Abrahams is also a claimant from what has been said to your Lordship. My Lord, those are my instructions.

MR JUSTICE NEWMAN: Well, I am not surprised. It is very right and proper for you to make that point. I am bound to say that my own conclusions, on a provisional basis, are that what has here occurred, or could have occurred, is that the real moving force behind this piece of litigation is Mr Abrahams, that he is a man of means, that aware as he was that there was a risk that if he lost he would have to pay the costs and perhaps having the means to do so his means would be depleted, the device has been deliberately employed of using Mr Furness as the claimant, as somebody who has no capital, or no real means, apart from disability pension, and that that has been deliberately done in order to protect the person who had the greater interest, and indeed the significant interest, in this piece of litigation being brought. That, of course, is but a provisional view. It is open to you, if you so wish, to request the court to order an enquiry into that and there could be separate proceedings as to whether or not Mr Morris Abrahams is, in truth, somebody who has been the driving force in the litigation, having an interest in the litigation and that he has deliberately not made himself a party as a claimant in order to avoid a liability in costs. There are procedures whereby that sort of enquiry can be made. What the outcome will be, I know not. But, of course, it means the local authority incurring more costs in order to chase after this possible means of recourse. The other way, of course, in which it might be resolved is that, as between Mr Furness and Mr Abrahams, they might themselves see that the proper way forward is that such order for costs as I intend to make against Mr Furness is one which is in fact met by Mr Abrahams and any members of his residents association, so that they protect Mr Furness from the consequences of that which they have invited him to take upon himself. But that may be a matter for them to resolve.

MISS MACPHERSON: Yes, my Lord. My Lord, would it be appropriate for me to sit down and, I mean, it may be that Mr Abrahams is willing to give an undertaking on costs on behalf of Mr Furness in the light of what your Lordship has said.

MR JUSTICE NEWMAN: He may or he may not. I know not. He may also need to reflect on the position and take legal advice. So I would not wish to force him to give any form of undertaking to me. I think the position must be -- it seems to me the best way forward is that I should make such order as I think appropriate against Mr Furness. It will be a matter for the local authority to determine what they wish to do once possessed of that order. I can order that you have liberty to apply in order for an inquiry to be carried out as to whether Mr Abrahams ought to be somebody who should be responsible for the costs.

MISS MACPHERSON: I am very grateful, my Lord, because, of course, bearing in mind that this is a matter of some gravity I am sure my instructing solicitor, who is behind me, will wish to consult with her senior colleagues and will need time for them to decide what the council will wish to do.

MR JUSTICE NEWMAN: I emphasise that there must be the opportunity for Mr Abrahams to reflect on the position and, as necessary, take legal advice.

MISS MACPHERSON: Yes, my Lord.

MR JUSTICE NEWMAN: And everything I have said is nothing other than what seems to me to be an arguable position in which the local authority are placed of which the court should take account.

MISS MACPHERSON: I am grateful, my Lord.

MR JUSTICE NEWMAN: Thank you very much. Then the order of the court is that the defendant should recover £7,500 costs as against Mr Furness. The local authority will have liberty to apply in connection with these proceedings before any enquiry that they wish to pursue in connection with the part that Mr Abrahams has played in these proceedings and the extent to which his participation in them brings him within the appropriate rules as someone who should be responsible for the costs of this litigation along with Mr Furness.

Thank you all very much indeed. I am sorry that it is so late on a Friday afternoon.