England and Wales High Court (Administrative Court) Decisions

“(a) Retention and enhancement of listed buildings in association with football or other spectator sport or entertainment as appropriate in the location;

(b) Provision of a public Riverside walk with links inland as appropriate;

(c) Residential development reasonably necessary to enable the achievement of these objectives and in accordance with normal housing and environment policies.”

As is made clear in the UAP, the site was considered to contain a rare group of listed buildings and there was need for a use (preferably the sports use for which they were defined) that would preserve them largely intact and in an appropriate setting.

“(1). The Secretary of State may give directions requiring applications for planning permission … to be referred to him instead of being dealt with by local planning authorities.

(2). A direction under this section –

(a) may be given either to a particular local planning authority or to local planning authorities generally; and may relate either to a particular application or to applications of a class specified in the direction”.

S. 77(5) requires that there should be an inquiry if either the applicant or the local planning authority so wish following a call in direction. Applications for listed building and conservation area consents are included within this call in power; Planning (Listed Buildings and Conservation Areas) Act 1990. S.12. Local Planning Authorities must notify the Secretary of State of applications which they do not propose to refuse which are not in accordance with the relevant development plan and which include more than 150 houses or flats or more than 5000 square metres of gross leisure floor. In addition, the Secretary of State may decide to exercise his powers following representations made by interested parties. In a letter dated 9 August 1995 directing a call in, the Secretary of State said this: -

“2. On the information before him, the Secretary of State is of the opinion that the application is one which he ought to decide himself in order to assess the proposed housing density impact on car parking in the area and the impact of the proposed development on the River Thames”.

“(i). The impact of the physical scale of the development in relation to surrounding land uses and occupiers.

(ii) The impact of the use of development on match days, including how other uses within the site operate during that time, how people would arrive at and depart from the site and the impact and extent this would have on the surrounding area including adjoining Boroughs, in terms of noise, disturbance, litter and transport (including issues such as traffic generation, on and off street parking, existing/potential public transport provision, pedestrian movements etc). Also any additional impact connected with the emergency evacuation of the stadium.

(iii) The impact of the use of the development on non-match days, the type, frequency and hours of use of all the proposed activities and the numbers likely to be involved and the impact of this on the surrounding area in terms of noise, disturbance, litter and transport.

(iv) The impact of the development on the historical and architectural interest of the remaining listed buildings, the character and appearance of the conservation areas and the justification for the demolition of the listed buildings. The impact of the development on Bishops Park as a landscape of historical/cultural/archaeological interest.

(v) The impact of the development on the ecology of Bishops and Stevenage Park.

(vi) The impact of the development on the archaeology of the application site which includes the foreshore of the River Thames.

(vii) The visual impact on the development on the River Thames from the river, from riverwalks on both banks, from Hammersmith and Putney Bridges and from other points across the river.

(viii) The impact on the ecology of the River Thames.

(ix) The impact of the development on the hydrology and flood defences of the River Thames.

(x) The impact of the development on the recreational, leisure and commercial uses of the River Thames.

“7. The stadium’s primary purpose shall be for the playing and watching of Association Football and the playing area and terracing and seating overlooking the playing area shall only be used for the following purposes: -

(a) The home matches of only one professional club for the playing of Association Football.

(b) Events within Use Class D2(e) for children and educational establishments.

To ensure that the development does not result in conditions prejudicial to the amenities of the surrounding area from additional traffic, noise and disturbance which may be generated by the development contrary to UDP policies. EN21, TN14 and TN15 as a consequence of more frequent crowd-generating or noise than one club’s football matches.

9. On non-match days the total number of patrons using all the facilities of the stadium shall not exceed 150 at any one time unless it is for an event under Use Class D2 (e) for children and educational establishments”.

There were other conditions (such as a prohibition use of the stadium between 11pm and 9 am and that the restaurant must only be used as such and the café must not be used after 8pm except on match days) which were designed to keep disturbance to a minimum, including restrictions applicable to the demolition and construction involved.

“4.13. The main representations put forward by objectors are: -

(i) The demolition of the listed buildings, involving the loss of Craven Cottage in its entirety and the demolition of all but the façade of the Stevenage Road stand is unacceptable and unjustified.

(ii) The scale and design of the Stadium is unacceptable in relation to the site and the surrounding area.

(iii) The proposals would fail either to preserve or enhance the character and appearance of the conservation areas within the site lies and adjoins. The site lies within the Fulham Reach Conservation Area and adjoins the Bishops Park and Crabtree Conservation areas.

(iv) The height, massing and visual appearance of the proposal, because of the site’s prominent position on the River Thames, would have an unacceptable impact.

(v) The development would be detrimental to residential amenity by reason of its visual impact, traffic generation and associated affects upon air quality.

(vi) The proposed development is contrary to UDP policies, particularly Site Policy 19.

(vii) The highways impact on the proposals would be unacceptable. The use of the existing stadium puts pressure on the highway network and upon parking. The redevelopment proposals have the potential to more than double the attendance. The impact of the additional cars would be felt in Fulham and outside the Borough. There would be 26,000 HGV movements during the construction period which would adversely impact on residential amenity and highway network.

(viii) The public transport system would be incapable of adequacy catering for the increase in passenger movements.

(ix) The development would severely prejudice the function of the River Thames as an ecological resource and as a recreation facility.

(x) The stadium might become a “white elephant” if the football club either fail to achieve promotion to the Premier League or fail to maintain Premier League status if promotion is attained.

(xi) The applicants have failed to consider all alternatives to the proposals, including the feasibility of the football group being redeveloped as a phased programme which would have different environment impacts.

(xii) The need case for a new stadium of 30,000 capacity has not been proven nor has the need for the housing block.

(xiii) There would be unacceptable encroachment on to the River Thames which is public open space and should be protected from development. Any development should be contained within the site.

4.14 Additionally objectors criticised the Environment statement. They contend that it is deficient in its assessment of a number of key issues including highways and transportation, Impact on the river and consideration of alternatives.

4.15 The main points made by supporters of the development are as follows:

(i) The proposal would be an improvement visually over what is on the site at present.

(ii) The stadium has to be brought in line with safety requirements and football guidelines and this is an opportunity to provide a well designed and up to date new stadium.

(iii) It is important to retain the club on the site as it is part of the Borough’s heritage.

(iv) The development would introduce a valuable new section of river walk and enhanced river views.

(v) The football club makes a significant contribution to the local community and the development would enable this contribution to continue and to be enhanced by securing Fulham Football Club’s future at its historic home.

(vi) The development would bring employment to the area”.

“What is apparent is that, if the proposed stadium were built, Fulham Football Club would be likely and probably more likely to remain on its historic site into the foreseeable future. Additionally, it is likely that the existence of the new stadium would contribute towards future sporting success though, of course, it would in no way guarantee it"”

“… has been and continues to be made on the basis that the Council shall have properly satisfied itself that the size and capacity of the proposed stadium is the minimum to ensure the viability of the Football Club development and the provision of the benefits referred to in the supporting documentation”.

At the meeting, the Assistant Director (Development Services) told the Committee that the officers had concluded that, because of the intangibles surrounding the financing of football clubs and a scheme such as the one proposed, it was most unlikely that any conclusive evidence could ever be forthcoming. Officers, he said, therefore took the view that notwithstanding the qualification contained in the English heritage letter, the visual, historic and aesthetic qualities of the proposals remained unchanged and the recommendations to approve the applications should stand. There can be no doubt that English Heritages’ concerns were properly put before the Committee which was, in the exercise of its judgment, entitled to decide that the scheme could nevertheless be approved.

“it seems to us beyond argument that if it was thought right to give the opportunity for objectors to be heard previously, then our client and other local people are entitled to the same opportunity in relation to the new application and proper decision-making process”.

On 28 March the Secretary of State replied saying that he had decided not to call in the application. The letter continued: -

“The Secretary of State’s policy on call-ins is to be very selective. It is right that in almost all cases the initial decision on whether a development should proceed should be taken by the local planning authority.

Therefore, planning applications are in general only called-in if planning issues of more than local importance are involved, and if those issues need to be decided by the Secretary of State rather than at local level. Each case is considered on its individual merits. However, we have given as examples of cases where the Secretary of State might consider call in appropriate those which, in his opinion, may conflict with national policies on important matters; could have significant effects beyond their immediate locality; give rise to substantial regional or national controversy; raise significant architectural and urban design issues; or may involve the interests of national security or of foreign Governments.

After very careful consideration, the Secretary of State has concluded, from the information before him that it is right in this case to leave the decision to be taken by the planning authority”.

On 6 April Mr. Buxton wrote again saying that the points he had raised in his letter of 15 March had not been met and it was important that the Secretary of State provided ‘full and cogent reasons for his decision’. He added: -

“One also notes that by failing to call the matter in, the Secretary of State is, in effect, negating the rights of people affected by the development to a hearing, contrary to the Human Rights Act 1998. This is unlawful and I trust you will address this issue too. A similar point arises in relation to the lack of hearing in relation to departure from the development plan, which had been subject to inquiry"”

On 25 April the Secretary of State replied stating that there was no requirement to give reasons and effectively repeating what he had said in his previous letter. This claim was instituted on 15 May 2001. Permission was granted on the papers by Forbes, J on 18 June 2001.

“In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …”

It is not immediately obvious from the language used that any of the claimants’ civil rights are being determined by the decisions made on the planning application. However, the Strasbourg jurisprudence has given a more extended meaning to the language, adopting, as it always will, a purposive approach to the reach of the Article. And, as the House of Lords has made clear in Alconbury the courts in this country should follow established Strasbourg jurisprudence even though it may appear to extend the scope of any Article beyond that which would otherwise be considered appropriate. Miss Lieven has submitted that Article 6 is not engaged in the circumstances of this case. Mr. Lindblom and Mr. Straker have not pursued that argument but have submitted in common with Miss Lieven that, if it is engaged, there is no breach in the refusal of the Secretary of State to call in.

“In my judgment, however these issues are characterised, the assessment of such maters as the likely impact of the proposed development on Norwich City Centre and its associated traffic issue is clearly very different from findings ‘of facts, or the evaluation of facts such as arises on the question of whether there has been a breach of planning control’: see Lord Hoffmann at Paragraph 117 of his speech in Alconbury. As it seems to me, this is a reference by Lord Hoffmann to the type of dispute which requires the making of findings of primary and immediate fact by the administrative decision maker – findings which are needed to resolve substantial issues of fact in the dispute in question, which issues have to be resolved in order to make the decision which will determine that dispute”.

I entirely agree.

“If therefore the question is one of policy or expediency, the ‘safeguards’ are irrelevant. No one expects the inspector to be independent or impartial in applying the Secretary of State’s policy and this was the reason why the Court said that he was not for all purposes an independent or impartial tribunal. In this respect his position is no different from that of the Secretary of State himself. The reason why judicial review is sufficient in both cases to satisfy Article 6 has nothing to do with the ‘safeguards’ but depends upon the Zumtobel principle [Zumtobel v Austria 1993 17 EHRR 116] of respect for the decision of an administrative authority on questions of expediency. It is only when one comes to findings of fact or the evaluation of facts, such as arise on the question of whether there has been a breach of planning control, that the safeguards are essential for the acceptance of a limited review of fact by the appellate tribunal”.

It is important to see that Lord Hoffmann was not there saying that the existence of a factual issue meant that judicial review was necessarily inadequate. The Zumtobel case indeed supports that view. Every decision on a question of expediency must be based on fact or the evaluation of fact but that does not, as Lord Hoffmann makes clear, mean that it is nonetheless to be regarded as requiring an independent fact finding tribunal where there are factual disputes involved.

29. In the circumstances, this claim is dismissed.

MR JUSTICE COLLINS: I have spotted two minor typos, which I had better just correct. On page 3 at the end of paragraph 5 after the quotation, "UAP" should be "UDP". On page 10, paragraph 11 on the first two occasions when "English Heritage" appears there should be a capital H. Otherwise -- and I am grateful for other corrections -- for the reasons given in the judgment, which has been handed down, the claim is dismissed.

MS LIEVEN: My Lord, may I just point out one further correction?

MR JUSTICE COLLINS: Yes, certainly.

MS LIEVEN: Paragraph 23. You say, "In the Friends Life cases". It should be "Friends Provident cases". That is how it has been shortened.

MR JUSTICE COLLINS: That is right and I am grateful, and it should be "case" not "cases".

MS LIEVEN: My Lord, the Secretary of State is seeking his costs and I understand that that application is not opposed.

MR JUSTICE COLLINS: Well, I imagine that that cannot be opposed.

MR HARRIS: May it please your Lordship, I appear on behalf of the local planning authority and we apply for our costs also. Your Lordship will be very familiar with the general rule that there are no general rules and that the matter of costs is a matter for your discretion.

MR JUSTICE COLLINS: Well, yes, except that I think the Burnley case makes it plain, does it not, that it is normal perhaps -- if there is a norm -- for there to be only one set of costs and it needs a reason for there to be more than one, unless -- and I am quoting from the case now:

"He demonstrates a separate issue not covered by the Secretary of State, on which he was entitled to be heard, or has an interest requiring separate representation."

MR JUSTICE COLLINS: There was not really, was there?

MR HARRIS: Can I say that there was, my Lord, in these two respects. First we say -- and your Lordship will remember -- that a significant part of the claimant's case was based upon the nature and lawfulness of the conduct of the local planning authority. In particular, detailed issues were taken as to the content of the report to the committee and significant issues and, second, allegations were made as to the lawfulness of the committee proceedings and the standing orders. Now, they were matters upon which, firstly, the local planning authority were clearly entitled to appear. That is the first issue --

MR JUSTICE COLLINS: Oh, there is no issue of entitlement.

MR HARRIS: -- but, second, my Lord, they were not matters which could properly be defended by the Secretary of State. Your Lordship makes it clear in your Lordship's judgment that it is not part of the Secretary of State's role to vet local authority procedures. If that is true as a matter of substantive judgment, then it must follow that it is not the position of the Secretary of State to seek to defend the local planning authority at hearings such as this. If the claimant seeks, as he did in this case, to make substantial and serious allegations about the lawfulness of the local planning authority's procedures, he can expect the local planning authority to turn up, and to pay for the privilege of them turning up in the event that they are dismissed.

MR JUSTICE COLLINS: Yes, except that the reality is surely, as I have decided, that those attacks should be made against the local planning authority. They should be joined then or judicial review will be taken against them. The only way that they were used or sought to be used was to attack the Secretary of State, and that lost. The Secretary of State could have dealt with that. Maybe it would have been helpful for you to put in some evidence, but that is as far as it goes. Anyway, your evidence on the standing orders was not very impressive.

MR HARRIS: My Lord, that is how the case turned out. Your Lordship found that, in effect, this was a collateral attack on the local planning authority by way of an attack on the Secretary of State. That was not how it was pleaded and we sought to make this matter clear to the claimant at all material stages. I do not want to take up too much of the court's time but I wonder if I can take your Lordship to the bundle, because it is perfectly clear from the contents of the bundle that this was in the event an attack by the claimant on the local planning authority, and how that developed in court and how your Lordship determined the issue is another matter. If your Lordship looks to the main bundle index and in particular to the claim form.

MR JUSTICE COLLINS: Page?

MR HARRIS: Page 3 of the main bundle. Your Lordship will see that part of the relief sought was relief which directly related to an administrative decision of the local planning authority, in particular relief at number 4:

"... a stay prohibiting us from granting planning permission or, if planning permission has been granted or is hereafter granted before final determination hereof, an order quashing the decision."

So, a direct attack on our administrative decision. But it goes further than that because --

MR JUSTICE COLLINS: It is very questionable whether that relief could ever have been granted, where the local authority was not --

MR HARRIS: I accept that but the fact that a bad point had been taken should not sound against us. We are entitled to come and defend the bad point. If it is a bad point, then it should paid for by the claimant.

MR JUSTICE COLLINS: If it is bad enough, you simply have to write in and say, "Are you really pursuing this?"

MR HARRIS: We did, exactly the point I am now going to take your Lordship to. We, in response to that, filed a very short summary of our case, which raised in terms the point of whether the claim was being pursued in that way, and your Lordship will find that set out at page 22 of the bundle. Paragraph 3. It is admirably terse.

"The council is concerned that proceedings ought not to be treated so as to represent a challenge to the council's resolution of February 2001."

Now, we say, in reality that was always likely to be a very bad point taken by the claimant, and here we were giving him notice of that fact. He responded, my Lord -- page 26 in the bundle -- in the clearest possible terms. Paragraph 7:

"Contrary to the assertions by the interested party, Fulham Football Club -- "

MR JUSTICE COLLINS: Yes, I take your point.

MR HARRIS: The claimant does challenge the decision. Now, we were led --

MR JUSTICE COLLINS: Nothing was said by Mr Justice Forbes, I see, on granting permission.

MR HARRIS: So, in those circumstances we had to appear. But it goes one stage further than that. I do not know whether your Lordship has the very short -- I think your Lordship discarded Linklaters' bundle.

MR JUSTICE COLLINS: The second bundle?

MR HARRIS: Yes, it is a very small bundle. At page 84, where we wrote to the Administrative Court, doing our utmost to put the court and the claimant on notice that this was a thoroughly bad point as far as we could see but if he pursued it, they were certain risks. Fourth paragraph:

"The council's view that the way in which the claimant's solicitors put forward the claimant's position and the allegations made ensure that it is both appropriate and necessary for counsel to attend. In these circumstances the council will be seeking costs from the claimant. We have written to the Administrative Court, copied to Richard Buxton."

Now, in those circumstances we say we clearly meet the test set out in Doncaster: (a) we are entitled to be here; (b) we put him on notice that he was taking a bad point; (c) he continued taking the bad point and we were not entitled to rely on the fact that your Lordship would rule against us without us being entitled to be here. If you take the bad point, you pay the consequences. Those are our submissions.

MR JUSTICE COLLINS: You cannot trust the judge to spot the bad point?

MR HARRIS: Well, ordinarily you can, but you are entitled -- and the claimant must know, if he brings a bad point, that the price of bringing a bad point is the risk of paying two costs.

MR JUSTICE COLLINS: Yes.

MR STRAKER: My Lord, I appear for the developer and we make no application for costs.

MR JUSTICE COLLINS: Very sensible.

Well, Mr McCracken, what do you want to say?

MR McCRACKEN: My Lord, the first thing that I have to say is that an application for a second set of costs by a party represented by a queen's counsel and two junior counsel of standing is a very serious matter indeed.

MR JUSTICE COLLINS: That is a matter for a decision by the relevant authority, should I decide to award costs. I certainly would not be prepared, as at present advised, to certify that it was fit for two juniors. I do not think that application would actually be made.

MR McCRACKEN: My Lord, it is also relevant to the amount of time that your Lordship may have to spend on this now, as it were. It is by way of explaining why I may take some time to deal with this point, because of the very considerable importance to my clients.

MR JUSTICE COLLINS: There is a lot of money at stake, that I understand, but I do have the power to make a limited order, do I not?

MR McCRACKEN: I do not think it would be any consolation at all to my clients to know that they were paying for a queen's counsel and a junior of standing and not two juniors of standing.

MR JUSTICE COLLINS: Mr McCracken, that, as I repeat, is not a matter for me. If you can persuade the authorities, and indeed persuade me perhaps -- I do not know whether I have a power to make any directions that this is only fit for one junior -- or persuade me that, if I were minded to make any order, I should limit it, I have power to order a lump sum.

MR McCRACKEN: My Lord, I fear I am getting distracted or distracting your Lordship into considering details when it is the principle that is most important.

MR JUSTICE COLLINS: Let us deal with the principle. The principle is clear enough, I would have thought.

MR McCRACKEN: My Lord, yes, and I would like to hand up a Court of Appeal decision in the case of Berkeley, where, although the appeal was unsuccessful against the decision of Mr Justice Tucker, the Court of Appeal deprived a second respondent of costs, even though, as is apparent on the penultimate page of transcript, the court accepted that the second respondent, who had been awarded costs, was uniquely able to assist the judge as to the information available at the planning inquiry. That is a case where there had been a planning inquiry. A lot turned upon what had happened at the inquiry and the inspector's response to that and, therefore, the second respondents, who were deprived of their costs at first instance by the Court of Appeal, had been uniquely able to help in relation to what had happened at the inquiry. Now, this is a very different case because in this case the issue, as your Lordship has found at paragraph 12 of his judgment, does not turn upon the criticisms of the manner in which the local planning authority made their decision. Your Lordship found in terms at paragraph 12 --

MR JUSTICE COLLINS: Mr McCracken, the fact that I found against that submission by you is nothing to the point. The only question here, as I see it -- and I think it was put really on this basis -- is that, because you took a point against the local authority, a point which went to the local authority's procedure and which the Secretary of State could not directly deal with without some material put in by the local authority, that was a point which was a thoroughly bad point because, if you were pursuing it, you should have pursued it against the local authority and not against the Secretary of State, and you were warned.

MR McCRACKEN: My Lord, that is the only point --

MR JUSTICE COLLINS: Otherwise I would not dream of giving a second set of costs.

MR McCRACKEN: My Lord, your Lordship found as a fact, though, that the point is bad as a matter of fact because your Lordship --

MR JUSTICE COLLINS: Well, I found as a fact that you took it.

MR McCRACKEN: No, my Lord, your Lordship found as a fact at paragraph 12 that I did not take it. Your Lordship found that no challenge is made to the manner in which the borough dealt with the application. That is a finding of fact by your Lordship, which binds my learned friend.

MR JUSTICE COLLINS: That may be, but the point is that representation depends upon the case that is put against an individual. He has to decide on that case that is put whether he should appear and be represented. If at the end of the day the point is either abandoned at trial or turns out to be a bad one, that does not help the person who took it.

MR McCRACKEN: My Lord, the point was not abandoned at trial. At trial the point was put exactly the way that it had been put in the claim and exactly the way that it was put in the skeleton argument. The point that was being made was that any relief for the failure of the Secretary of State to call in would be rendered nugatory if a planning permission had in the meantime been issued. The point was quite simply that, for relief against the Secretary of State to be effective, it was necessary that any planning permission granted should be quashed. Now, in the event --

MR JUSTICE COLLINS: Mr McCracken, all you needed to do was to write to the local authority and say, "Look, will you agree and accept that you must not and will not grant permission until these proceedings are concluded." If they had said yes, no problem. If they had said no, then you would have no doubt sought an interlocutory order from the court against them. It is as simple and straightforward as that.

MR McCRACKEN: It is actually even simpler than that, my Lord. Hammersmith have not issued the planning permission and therefore their attendance here has, even within the context of the way in which Mr Harris puts it, been entirely unnecessary. They have not issued the planning permission and therefore the very thing that they say they had to come here to prevent happening -- that is a prohibition or a quashing -- is something that in practice they have not wanted to do. So their attendance here has been a futile exercise even seen from their own perspective because the way that Mr Harris is putting the point is that, well, there was a specific order directed to us and we needed to come here to prevent that order being made. But they did not need to come here because they did not in fact have any intention of issuing the planning permission.

MR JUSTICE COLLINS: I see what you are saying.

MR McCRACKEN: And that in my submission must be determinative of the application from the way in which it is made.

Now, so far as the correspondence, in my submission the way in which the claim is made makes it quite clear that my clients were raising points that could be dealt with by the Secretary of State with, if necessary, any evidence from Hammersmith and Fulham as to what actually happened. Now, in the event, as your Lordship observed, the only witness statement that was produced -- your Lordship is aware of the point that the only witness statement that was produced had the value that it exhibited the standing orders but had the great demerit that it misunderstood the standing orders.

MR JUSTICE COLLINS: (Inaudible) by producing the standing orders which showed that it could not have been a motion to set aside.

MR McCRACKEN: If my learned friend's concerns had been real rather than forensic, then they could have written to the court and made an application to have the issues clarified. If there had been a serious worry that something was going to happen to them, about which they were concerned, they could have applied to the court for --

MR JUSTICE COLLINS: They did write to you, did they not?

MR McCRACKEN: Well, my Lord, we presented the case as we set it out in the claim and that is -- and I take your Lordship to the skeleton argument because that sets it out very clearly.

MR JUSTICE COLLINS: I am afraid I have not brought that.

MR McCRACKEN: I do not know whether we have any unmarked copies.

MR JUSTICE COLLINS: Well, just read it.

MR McCRACKEN: There is nothing -- well, paragraph 3 in the skeleton argument:

"The court is asked to prohibit the borough from granting permission for the development or, if it has been granted by the time of the court's decision, to quash any such permission. Otherwise any order made by the court to the Secretary of State's decision will be rendered nugatory."

That is in the skeleton and I think that skeleton was actually submitted in the summer or in the early part of the autumn, when the case was originally listed. It was then stood out of the list.

MR JUSTICE COLLINS: Did you answer the letter from the borough of 9th July, which is the letter at page 84?

MR McCRACKEN: I am sure that we have it, but the point is the claim was never --

MR JUSTICE COLLINS: Did you answer it?

MR McCRACKEN: I do not know what answer was given to that. Your Lordship must appreciate that the letter was written in the context of a suggestion --

MR JUSTICE COLLINS: Yes, but they were telling you --

MR McCRACKEN: I am just taking instructions on whether there is correspondence on that point, but the point that I make, my Lord -- if your Lordship turns to the claim. Perhaps it is most helpful in this context to look at the claim. If your Lordship looks at the claim, it is:

"Quashing order in respect of the decision not to call in.

"A mandatory order to the Secretary of State to reconsider according to law.

"A mandatory order to the defendant to give reasons for his decision."

Now, let us suppose any or all of those had been successful but in the meantime the borough had issued the planning permission. Success against the Secretary of State would have been entirely ineffective. It would have been rendered nugatory.

"To make any order against the Secretary of State effective it was necessary to have a consequential order -- "

MR JUSTICE COLLINS: Mr McCracken, I repeat, all that Mr Buxton needed to do was to write to the authority and say, "Will you please undertake not to grant planning permission until our challenge to the Secretary of State is decided."

MR McCRACKEN: But in relation to that, my Lord, I return to the point that Hammersmith and Fulham have not in fact issued planning permission.

MR JUSTICE COLLINS: That may be but you could have put the matter beyond any doubt at all in your own mind, you need not pursue this point at all, if you had only written to them and said, "Do you intend to ... ?"

MR McCRACKEN: My Lord, can I take then you into the body of the claim, and I ask forensically where in the body of the claim is there anything other than the point that has been pursued before your Lordship, which your Lordship found as a matter of fact was not based upon the manner in which Hammersmith and Fulham made their decision?

MR JUSTICE COLLINS: Page 26, the letter from Mr Buxton.

MR McCRACKEN: I am sorry, my Lord, page 26 of the claim?

MR JUSTICE COLLINS: Of the bundle. The letter of 18th June from Mr Buxton to the court, which is effectively a response to the acknowledgment of service.

MR McCRACKEN: If your Lordship will give me just a moment to identify that.

MR JUSTICE COLLINS: Pages 24 to 26 of the bundle.

MR McCRACKEN: I cannot immediately find those letters, my Lord, so --

MR JUSTICE COLLINS: It is in the main bundle.

MR McCRACKEN: No, that is the difficulty I am having, my Lord: finding it in the main bundle at the moment. Page 26?

MR JUSTICE COLLINS: Page 24.

MR McCRACKEN: No, I am having difficulty finding page 24 of the bundle. I am sorry.

MR JUSTICE COLLINS: Your bundle is defective?

MR McCRACKEN: Yes, my bundle is defective. I just wonder if -- if your Lordship could identify the dates of the letter upon which --

MR JUSTICE COLLINS: It is 18th June 2001. As I say, it is the response to the acknowledgment of service and the relevant paragraph is paragraph 7, the penultimate paragraph of the letter. It refers back to the football club's representations, or grounds for contesting, at 4.4, and if we look at those at page 23 of the bundle.

MR McCRACKEN: My Lord, yes. The point about this letter is that Hammersmith and Fulham were saying, "Do not give permission for this challenge to the Secretary of State's decision not to call in because there is no point in doing that, since Article 6, if it is a criticism, ought to be made in respect of the local planning authority." And the response was, "Yes, we are saying to the Secretary of State, 'You should have called in because the local planning authority proceeding cannot apply with article 6'."

MR JUSTICE COLLINS: So not an attack on the authority.

MR McCRACKEN: Not a separate attack. It is a sort of parasitic claim, which is consequential in nature rather than independent, and so I would respectfully submit that the position was clarified --

MR JUSTICE COLLINS: It was not, but I take your point.

MR McCRACKEN: My Lord, yes.

MR JUSTICE COLLINS: It would have been so much easier to have made it absolutely clear, but there we are -- particularly to have replied to their letter of 9th July.

MR McCRACKEN: Well, my Lord, I suppose opinions will often differ about what letters mean, as illustrated by the --

MR JUSTICE COLLINS: They are saying that, look, they need to attend because you are challenging the decision. You say, "Well, we are only saying that the decision was bad, and that is not an attack on the council, that is an attack on the Secretary of State because he ought to have called in because he appreciated that the council's decision was flawed." That was the way you were putting it. On the other hand, that meant that some evidence was bound to be needed from the council about their own procedures, and you should pay, as it seems to me, in principle for the production of that evidence, even if for nothing else.

MR McCRACKEN: My Lord, we accept that in principle we should pay for the production of evidence, subject to the point that, as the evidence in fact failed to understand the standing orders, its defects should be reflected in a penalty as to costs. The court ought to exercise its discretion to all the parties that, if they are putting in material in the Administrative Court and they are public bodies, they should think about that material and understand it and they should not misrepresent --

MR JUSTICE COLLINS: It is not only public bodies that should think about what they put in, Mr McCracken.

MR McCRACKEN: My Lord, I accept that. My Lord, might I take you to Mr Justice Ouseley's judgment in the Cummings case, to which your Lordship referred.

MR JUSTICE COLLINS: Again, I have not brought a copy of it with me, I am afraid.

MR McCRACKEN: It is just at the end on costs, my Lord.

MR JUSTICE COLLINS: Can I be naughty and say that, since this would appear to be covered by the practice direction and Mr Justice Ouseley has not indicated that it should come outside the practice direction, neither I nor you should be referring to it, should we, because it is not authority for anything.

MR McCRACKEN: No, my Lord, that might arise later on, perhaps, this morning. But it may be that the way I can deal with it is this: might I adopt the words of Mr Justice Ouseley?

MR JUSTICE COLLINS: This bit of course I have not seen, so I do not --

MR McCRACKEN: If your Lordship looks at about four pages from the end.

MR JUSTICE COLLINS: This is the argument about costs?

MR McCRACKEN: In fact it is the first page that is before your Lordship:

"There was not so distinct a point that was raised as to entitle them to have what would be an unusual order [and that is an order for costs in favour of the developer], so the application is dismissed."

Now, of course, it is even more unusual to make an order in respect of a local authority -- and I think there is more about witness statements and so on there. Might I just return, as it were, to -- immediately before that Mr Justice Ouseley says:

"I consider that, although the witness statements of Mr O'Neill and Mr Murphy were of assistance, as indeed of course were Mr Harris's own submissions, it was not so distinct a point that was raised as to entitle them to have what would be an unusual order."

That is for an order in respect of the developer.

My Lord, might I make a couple of more points? One has to ask oneself, looking at the way the case was presented by the borough, what separate points were they taking, what separate interests were they representing? The answer to that is no more separate points, no more separate interests than, say, in the Cummings case or Berkeley (No 1), whatever doubts they might have had right at the outset. One also asks this: when a city embarks upon litigation of this sort, there is a lot of anxious soul searching about liability for costs and so on. The usual rule is that one pays the Secretary of State's costs. Should this case be one where the citizens are exposed to a greater liability for costs?

One asks this question -- in my submission it is important in the context of the overriding objectives which govern decisions as to costs; this was new legislation and a new decision of the House of Lords -- should a citizen be exposed to a greater liability for costs in such a case, or a lesser liability, and if the liability for costs should change, it would if anything change in respect towards a lower liability for costs?

MR JUSTICE COLLINS: Mr McCracken, I am sure it is my fault but I am frankly not following the thrust of that submission.

MR McCRACKEN: Normally, the parties can take advice on prospects for success and they can be advised on the basis of the trend of decisions over the past years, and they are to some extent dependent upon the good judgment of their counsel. Where Parliament has changed the law --

MR JUSTICE COLLINS: In what respect has Parliament changed the law?

MR McCRACKEN: It incorporated the European Convention on Human Rights.

MR JUSTICE COLLINS: Oh, I see, you are referring to --

MR McCRACKEN: Yes, my Lord. Then the Auchenbury decision was made by the House of Lords and of course the Stefan decision had been made by the Privy Council, but particularly taking the Auchenbury decision -- there are a number of questions that flow from the Auchenbury decision. My clients embarked upon this litigation without any of the persuasive authority that influenced your Lordship being available today.

MR JUSTICE COLLINS: With great respect, what does that have to do with whether you attack the local authority or whether you should pay the local authority's costs? The Article 6 point was directed against the Secretary of State and, perfectly properly, it failed, but it does not in any way depend upon whether the local authority did or did not behave itself in a procedurally proper manner, save and except on the point that you submitted, that the Secretary of State should have had regard to that in deciding whether or not to call in because it all came in with the Article 6 argument.

MR McCRACKEN: But that was the full extent of the attack upon the local authority.

MR JUSTICE COLLINS: I know, but once you make an attack, surely the Secretary of State is entitled to say, (a) there was no procedural impropriety, (b) if there was, it would have made no difference and you must expect the response to be in that form, and that is, indeed, the form in which it was made. That does not of itself mean that the local authority had to appear but at least it meant that you would anticipate the local authority would take some active part, even if it was limited to the production of evidence.

MR McCRACKEN: My Lord, yes, but that point, of course, applies to every challenge to a planning permission. You always expect that the developer will take some active part in the --

MR JUSTICE COLLINS: Not necessarily. It depends whether it is necessary for any evidence to come from the developer. He may, of course, choose to attend but normally he does so at his own expense.

MR McCRACKEN: I can see the point about evidence, my Lord, subject to the qualification that -- I can see that. The overall point that is most important is that the very thing that Mr Harris says made it necessary for the authority to attend was the application for prohibition or stay, but that is the very thing that is not in practice of any concern to the authority because they have not issued the permission in the meantime.

MR JUSTICE COLLINS: I do not think that is a very good point.

MR McCRACKEN: Your Lordship did say that all we needed to do was to ask them --

MR JUSTICE COLLINS: Well, exactly. I cannot understand why you did not.

MR McCRACKEN: But they have not, my Lord --

MR JUSTICE COLLINS: So what? Why on earth did you not simply ask them not to? If they had said, "We are not going to give you any undertaking," then you would have had a very much stronger case, but you did not even bother to ask them. I cannot understand why not.

MR McCRACKEN: My Lord, with respect, what is the difference in substance between the situation where they are asked for and say they will give such an undertaking and the situation where they do not want to implement the planning permission and therefore do not do it? Why do they need to be here, if they do not --

MR JUSTICE COLLINS: In the second case you have made your application, which you are apparently intending to pursue. In the first case you simply do not pursue it.

MR McCRACKEN: My Lord, the claim made it clear that the challenge in respect of the local authority was wholly parasitic upon, was consequential upon the success against the Secretary of State. There was no danger that, if we failed against the Secretary of State, we were still going against the local authority. As they did not actually want to implement the permission, they cannot sensibly, and certainly not in a way that would entitle them to have costs, have decided to be --

MR JUSTICE COLLINS: Well, the one thing that I do think is that your clients should not bear any extra costs, if any are awarded.

MR McCRACKEN: That is a different matter, my Lord, and I am not going to -- it would be quite wrong for me to respond to that.

MR JUSTICE COLLINS: I mean your lay clients, the claimants.

MR McCRACKEN: I appreciate that, my Lord. I understand what your Lordship is saying but I do emphasise the point -- I pray in aid what the Court of Appeal said when they took away the costs that one of the parties had received at first substance in the Berkeley case. I pray in aid what Mr Justice Ouseley said in Cummings. I do emphasise that the borough have not in fact wanted to implement the permission and therefore, reading the claim form, appreciating that it is parasitic and consequential, there was no benefit to them in resisting this and at the end of the day the matter is entirely in your Lordship's discretion, and so ... My Lord, I invite your Lordship in the exercise of his discretion not to make an order for costs in favour of the borough.

MR JUSTICE COLLINS: My Harris, is there anything you want to add?

MR HARRIS: I just have three points, my Lord. The key limb of our submission has not been addressed by Mr McCracken at all and that is this. It was an important part of the claimant's case that the Secretary of State's failure in this case depended at least in part on putting the unlawful conduct of the local planning authority right. I take your Lordship to the parts in the skeleton or in the claim where that was asserted.

MR JUSTICE COLLINS: You do not need to do that.

MR HARRIS: You remember the point?

MR JUSTICE COLLINS: Yes.

MR HARRIS: The Secretary of State is not in a position to deal with that. He is not in a position to say, as your Lordship has found, that the local authority got it right or wrong. Only the local authority can deal with that limb of my learned friend's submission. There is no answer to that in our submission.

The second point is this. My learned friend speaks of anxious soul searching taking place. Well, no doubt that anxious soul searching took place before Mr Buxton's letter was drafted. It is clear and unambiguous. It maintains the stance that this claim is addressed at least in part to the conduct of the local planning authority. The fact that the consent has not yet been issued is beside the point entirely. The fact that the consent has not yet been issued relates to other matters, negotiations as to the context of section 106 agreements, et cetera.

MR JUSTICE COLLINS: But, I mean, if you had been asked to give an undertaking not to issue until these proceedings were concluded, you would have had to decide whether or not to give it, I suspect.

MR HARRIS: Yes.

MR JUSTICE COLLINS: If you had had any sense, you would have given it.

MR HARRIS: I have no instructions on the point but my advice would have been to give it.

MR JUSTICE COLLINS: Of course.

MR HARRIS: But it was not asked for, notwithstanding the letter which we specifically wrote seeking to clarify the point, a letter which was not answered. That was not the only piece of correspondence. I need not take your Lordship to it but Linklaters & Paine, acting on behalf of Fulham, wrote a letter in almost identical terms, which similarly was not answered, seeking an assurance on the same point. For my learned friend's benefit, it is page 85 of the Linklaters bundle, paragraph 2.

Those are my submissions, my Lord. This is a case where the principle of costs being paid to a second party ought to be in your Lordship's discretion.

Does your Lordship have the Linklaters bundle, page 85, second paragraph? This is a letter not originating from the authority, but it says this:

"The comments made in page 7 of your letter appear to be inconsistent with the statement made in section 3 of the claim form. We would be most grateful if you could confirm, as required by section 3, full details of the decision or decisions to be judicially reviewed, and if, as asserted in your letter of 18th June, the claimants do seek to judicially review the decision of the local authority, we would request that the claim form is amended to show clearly on the face of it which particular decisions are being challenged."

MR JUSTICE COLLINS: It seems to me that the major problem was that paragraph 4 of section 7 of the claim -- that is the request for prohibition against the London Borough -- was totally misconceived. It could not be claimed in a claim against the Secretary of State to which the local authority was not a respondent.

MR HARRIS: Hence the reason for the two interested parties seeking clarification. They have it in Mr Buxton's letter. So on that basis, that they felt it necessary --

MR JUSTICE COLLINS: There was not much clarification.

MR HARRIS: Well, it was made clear that the claim persisted against the local planning authority.

MR JUSTICE COLLINS: Well, I am not sure that it is actually quite as clear as that, because what they are saying is that they challenge the decision of the local authority, that is true, but they did not ever amend to claim against the local authority, and they put in -- if you look at the grounds, they do not actually allege anything directly against the local authority and, once the skeleton comes, it is clear that it is put on the basis that they are putting it. I agree with you that Mr Buxton was clearly at fault in not answering the letters, as I suspect he now recognises, and it should have been made much clearer.

MR HARRIS: But, my Lord, does it not go just one stage further? I do not want to take up much of the court's time, but page 12 of the bundle, paragraph 6.6, which is one of the paragraphs that Mr Buxton refers to, says this:

"The right which the promoter of the development had to a hearing if they failed to secure planning permission may be contrasted with the absence of an opportunity for the claimants even to address the committee. This was unfair, both in a lay sense and in the sense of Article 6."

Now, if there is anything that is parasitic in this case, it is the case which is put by the claimants because they claim that that unlawfulness infects the Secretary of State's failure to call in, but the Secretary of State is not in a position to deal with the contents of paragraph 6.6. We are, we were here and had to deal with it on that basis.

I think your Lordship has my submissions.

MR JUSTICE COLLINS: The Secretary of State claims his costs and there is no dispute but that the claimants must pay those. There is also an application made on behalf of the local authority, the London Borough of Hammersmith and Fulham, that its costs also should be paid by the claimants.