Gopie v. Mayor of London (1); LB Brent (2); Bellway Homes (3)

Transcript date:

Wednesday, March 27, 2002

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

George Bartlett QC

Case Name: Gopie (R on the application of) v The Mayor of London, London Borough of Brent and Bellway Homes

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Casetrack Heading Local Government Judgment Status Given

Casetrack sub-heading Planning

Transcript Status Approved

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Date 27/03/2002

Division Crown

Case No CO/5326/2001

Neutral Citation [2002] EWHC 656 Admin

Judge(s) George Bartlett QC

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Neutral Citation Number: [2002] EWHC 656 (Admin)

IN THE HIGH COURT OF JUSTICE CO/5326/2001

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2

Thursday, 27th March 2002

B e f o r e:

MR GEORGE BARTLETT QC

- - - - - - -

THE QUEEN ON THE APPLICATION OF GOPIE

-v-

THE MAYOR OF LONDON

and

LONDON BOROUGH OF BRENT (1st interested party)

and

BELLWAY HOMES (2nd interested party)

- - - - - -

Computer-Aided Transcript of the stenograph notes of

Smith Bernal Reporting Limited,

190 Fleet Street, London EC4A 2AG

Telephone No: 020 7404 1400 Fax No: 020 7404 1424

(Official Shorthand Writers to the Court)

- - - - - -

MR R HARWOOD (instructed by Richard Buxton, Solicitors) appeared on behalf of the Claimant

MR T STRAKER QC (instructed by Pitmans, Solicitors) appeared on behalf of the Defendant

MR M HUMPHRIES (instructed by Legal Services, Brent Council) appeared on behalf of the 1st interested party

MR R TAYLOR (instructed by Matthew, Arnold & Baldwin, Solicitors) appeared on behalf of the 2nd interested party

- - - - - - -

J U D G M E N T

(As Approved by the Court)

- - - - - - -

1. MR GEORGE BARTLETT QC: The claimant in this case seeks permission to apply for judicial review to challenge a decision of the Mayor of London not to direct refusal of a planning application made to Brent London Borough Council by Bellway Homes Limited North London. The application was for the construction of 344 dwellings, four retail units, a doctors' surgery and nursery buildings, accesses, car parking, landscaping and open space on a site of 8.97 acres at Hirst Research Centre, East Lane, Wembley. The Council resolved to grant the full planning permission sought on 25th October 2001. The Mayor's decision not to direct refusal was taken on 7th November 2001. The planning permission was issued on 5th December 2001.

2. The claimant is a resident of Wembley, who lives almost opposite the proposed development. She is a member of the North Wembley Residents' Association, who have been opposing the development of the site for residential purposes. The remedies she seeks are quashing orders to quash the Mayor's decision not to direct refusal and the Council's grant of planning permission. The challenge that the claimant seeks to make thus concerns the exercise by the Mayor of London of his statutory planning functions. I was told that it was the first time his statutory planning powers had arisen for consideration. Mr Richard Harwood for the claimant said that the point at issue had important wider implications for the future handling of similar applications by the Mayor, and he suggested that I should take this into account in deciding whether to grant permission.

3. In July 2000 the Greater London Authority was established. Executive power resides in the Mayor of London and there is an assembly, comprising 25 elected members, which is concerned with scrutiny and overview. Under section 334 of the Greater London Authority Act 1999 the Mayor is required to prepare a spatial development strategy, which must include his general policies in respect of development and use of land in Greater London. Under the Town and Country Planning (Mayor of London) Order 2000, the Mayor has power to direct refusal of planning applications. The power applies to applications defined as of potential strategic importance, received by the local planning authority on or after 3rd July 2000. Broadly, these applications are ones for large-scale development, major infrastructure works, development which may affect key strategic policies, for example green belt, metropolitan open land, major retail or housing which does not accord with the development plan, and development which may affect key strategic sites or views. The schedule to the order contains the definition of applications of potential strategic importance. Part 3 of the Schedule, development which may affect strategic policies, includes as category 3E:

"Development which does not accord with one or more provisions of the development plan in force in the area in which the application site is situated and--

...

(b) comprises or includes the provision of more than 150 houses or flats or houses and flats."

4. The application in the present case fell within this definition. Article 3 of the Order requires the local planning authority, as soon as reasonably practicable after receiving an application of potential strategic importance, to send to the Mayor a copy of the application and a copy of any plans, drawings or other documents submitted by the applicant in support of the application. This has come to be referred to as a stage 1 referral. The Mayor will then make his comments on the application and say if he wishes to be consulted if permission is to be granted. The response is the Mayor's personal response. The planning decisions unit of the authority will prepare a report for the Mayor in a similar fashion to a committee report and he will then give a view.

5. Under Article 4(1), unless the Mayor has notified the planning authority that he does not wish to be consulted, the authority is prohibited from granting planning permission, unless they have sent him copies of all representations received, the committee report and a statement of the proposed permission and conditions. This is called a stage 2 referral. Planning permission cannot be granted unless 14 days has elapsed from the receipt of these items or the Mayor has notified the authority that he is content for them to grant permission.

6. The power to direct refusal is contained in Article 5(1), which provides:

"(1) If the Mayor considers that to grant permission on an application which has been notified to him under article 3 would be--

(a) contrary to the spatial development strategy or prejudicial to its implementation, or

(b) otherwise contrary to good strategic planning in Greater London,

he may, within the period specified in article 4(1)(b)(i), direct the local planning authority to refuse the application."

7. The period specified in article 4(1)(b)(i) is 14 days from the date of receipt of the information required by article 4. The spatial development strategy has not yet been adopted by the Mayor.

8. Under article 5(2) the Mayor is required to have regard to a number of matters, including national policies and regional planning guidance. Under section 74(1)(c) of the Town and Country Planning Act 1990 he must have regard to the development plan and, as a consequence of this requirement, under section 54A his decision whether to direct refusal must be made in accordance with the development plan, unless material considerations indicate otherwise.

9. In practice, when a stage 1 or stage 2 referral is made, the Mayor receives a report from his officers, which he then considers in a fortnightly mayoral planning and spatial development strategy meeting. Attending are the Mayor, the Deputy Mayor, Mayoral and Deputy Mayoral advisers, and officers from the Authority's Policy and Partnerships, Legal, the London Development Agency and Transport for London. The meetings are held in private. The public and assembly members have no legal right to attend and the Mayor chooses to exclude them. Agenda papers are not published beforehand but after the meetings have taken place copies of officer reports to the Mayor and the Mayor's decision letters to the boroughs are published on the planning decisions page of the authority's web site.

10. Underlying the challenge which the claimant now seeks to make is an earlier application for the development of the site, which the Council resolved to grant but which itself became the subject of judicial review proceedings. It was, unlike the application approved in October 2001, an outline application. Because it was made before 3rd July 2000, the provisions of the Mayor of London Order did not apply to it. On 13th December 2000 Brent's planning subcommittee resolved that planning permission should be granted on the application, subject to a section 106 agreement. It was then referred to the Council's public services deciding committee who, on 4th April 2001, resolved to grant planning permission, subject to a section 106 agreement.

11. A resident brought judicial review proceedings. The application for judicial review raised four grounds: that an environmental impact assessment was required for the proposed development; that the Council had failed to have regard to relevant information relating to whether the application was premature with reference to emerging development plans; that the Council had failed to have regard to the effect on the conservation area; and that it had erred in relation to PPG16 policy on archaeology. The proceedings were settled on the Council's undertaking not to issue any planning permission pursuant to the resolution. On 14th August 2001 the court ordered the application to be withdrawn, with Brent paying the applicant's costs.

12. On 15th June 2001, Bellway Homes made the application out of which the present proceedings arise. On 29th August 2001 the Mayor gave his stage 1 consideration to the application. He was provided with a report by his officers. Paragraph 8 of the report referred to Brent's resolution to grant outline planning permission, subject to a section 106 agreement, and it recorded that the Government Office for London did not have any objection to the outline application. The report went on:

"9. The proposed outline permission is under judicial review, following a complaint from local residents that the Council had not undertaken a scoping opinion to determine whether an Environmental Impact Assessment was necessary and on grounds of prematurity, given the objections to the proposed redesignation in the replacement Unitary Development Plan have not yet been heard at an inquiry.

"10. The Council has conceded that it should have prepared a scoping opinion for the outline application. For this reason, a scoping opinion was prepared for the full planning application. In respect of the prematurity argument, the Government Office for London has authorised the Council to determine the application as they see fit without Secretary of State intervention."

13. The reference to a scoping "opinion" was erroneous. It should have referred to a screening opinion. Under the heading "Relevant strategic planning policies" the report said:

"13. 'Towards the London Plan: Initial proposals for the Mayor's Spatial Development Strategy' (2001) identifies that 'the need for additional homes, especially affordable homes is the single most pressing land use problem in London.'

" ...

"17. The site is situated within the East Lane Industrial Park, which is recognised as a Strategic Employment site in 'Towards the London Plan'. The proposed economic policy direction for the London Plan seeks 'to provide a framework of strategically important employment sites and to protect and enhance such sites for that purpose'.

"18. The site is identified within the adopted Unitary Development Plan as a primary employment area. The site is identified in the replacement Brent Unitary Development Plan as a major opportunity site for a mixture of affordable and general market housing."

14. Under the heading "Re-designation of a strategic employment site" the report said:

"20. The Mayor's policy seeks to protect and enhance strategically important employment sites, and in this regard, the proposed residential development on a strategic employment site is contrary to the emerging economic policies in the London Plan proposals document.

"21. However, the principle of the proposed change of use has been established by virtue of the proposed outline planning permission, which the Government Office for London (GOL) has not raised an objection to. In this regard, given the principle of residential land use has been accepted by the Council and GOL, the Mayor's consideration of strategic land use issues associated with the proposed scheme are somewhat limited to residential use and therefore it is necessary to focus on the implications of the proposed housing development."

15. The Mayor's planning decisions manager wrote to Brent on 30th August 2001, saying:

"Having considered the report, the Mayor has concluded that his views on the proposal are as follows:

"The proposed residential development on a strategic employment site is contrary to the emerging economic policies in the London Plan proposals document. However, the principle of the proposed change of use has been established by virtue of the proposed outline planning permission, which the Government Office for London has not raised an objection to.

"The proposed development provides a very good level and mix of affordable and general market housing in accordance with the Mayor's emerging policies and this is to be commended."

16. The letter made certain additional observations on the part of the Mayor. The Council thus had these views before them when they resolved on 25th October 2001 that planning permission should be granted.

17. Following their resolution, the stage 2 referral to the Mayor then took place. On 7th November 2001 the Mayor considered a further report. It said this under the heading "Context":

"2. On 29 August 2001, the Mayor considered planning report PDU/0029a/01, and subsequently advised Brent Council that his views on the proposal were as follows:

"The proposed residential development on a strategic employment site is contrary to the emerging economic policies in the London Plan proposals document."

18. It then repeated the views that had been expressed in the letter that I have just referred to.

19. Under the heading "Analysis of strategic planning issues" the report said this:

"6. In his letter of 13 August 2001 the Mayor accepted the principle of residential development as it had been established by virtue of a previous approval for outline planning permission."

20. Under the heading "Views of other organisations" the report said:

"9. A letter has been received from Councillor Bob Blackman, Leader of the opposition Conservative Group at Brent Council requesting that the Mayor direct refusal of the application for the following reasons:

"The proposed development of housing on this industrial land runs contrary to your London Plan Proposals document in that this is a strategic employment site.

"No environmental assessment has been conducted as required by recent case law.

"The planning application is a major departure from Brent Council's Adopted Unitary Development Plan.

"The proposed change of use is the subject of 41 separate objections to the public inquiry into the draft replacement UDP, which is due to commence in February 2002. The application is therefore premature and prevents local residents from presenting their case to a public inquiry.

"10. The letter also refers to the Mayor's stage 1 letter of 30 August which states 'the principle of the proposed change of use has been established by virtue of the proposed outline planning permission.' Councillor Blackman points out that this decision was the subject of a judicial review, which was subsequently withdrawn when the Council undertook not to issue planning permission, and as such should be totally ignored in the consideration of this new application.

"11. These issues raised by Councillor Blackman were referred to in the report to the Mayor on 29 August 2001, so that he was aware of them in reaching his decision on the stage 1 referral. In brief however, Brent Council gave a screening opinion that an Environmental Impact Assessment was not necessary for the current application; they took legal advice on the issue of prematurity, and while the outline consent has not been issued, it has been approved in principle by Brent Council, and was referred to the Secretary of State who decided not to intervene in the application. It is therefore a material consideration.

"12. The matters raised by Councillor Blackman were considered at the time of the stage 1 report. As his letter raises no new issues, it would not be appropriate to take a different approach to this application at this stage."

21. Finally, under the heading "Conclusion", the report said:

"21. The decision made by Brent Council secures a good level and mix of affordable and general market housing in accordance with the Mayor's emerging London Plan policies and some improvements have been made to meet the requirements of TfL. Whilst the site layout remains unappealing, the overall benefits of the development, particularly the affordable housing provision, are on balance, in the interests of good strategic planning in London."

22. The Mayor, having considered this report, wrote to Brent in these terms:

"Having now considered a report on this case ... I am content to allow Brent Council to determine the case itself (subject to any action that the Secretary of State may take), and do not therefore wish to direct refusal. I would however encourage you to negotiate with the applicant to achieve a further reduction in the amount of proposed parking of around 15-20 spaces, as part of your Section 106 negotiations, to secure a more sustainable development."

23. The claimant contends that, in deciding not to direct refusal, the Mayor acted unlawfully. His error, it is said, consisted in treating Brent's resolution on the outline application as establishing the principle of residential use on the land, so that he failed to consider the proposed development in the way that he was required to consider it by section 54A. Since the judicial review proceedings have been settled on the basis of the council's undertaking not to act on this resolution, it is said that it could not be determinative of the principle of residential development as a departure from the UDP which identified it as an employment area. It is said also that the Mayor erred in placing reliance on the views of the Government Office for London, which antedated his own emerging strategic policies. The first point that arises on this application, therefore, is whether these grounds of challenge are arguable.

24. The committee resolution to grant permission on Bellway's application was passed on 25th October 2001. The Mayor's decision not to direct refusal was taken on 7th November 2001. Planning permission was issued on 5th December 2001. The judicial review application was filed on 27th December 2001 and was served the next day. It seeks, as I have said, the quashing of both the Mayor's decision and the grant of planning permission. The second issue that arises is whether the claimant acted promptly in making her application and, if she did not, whether an extension of time should be granted.

25. There is no suggestion that the Council's resolution of 25th October 2001 was unlawful. Its quashing is sought as consequential relief, if the Mayor's decision is quashed. The third issue that arises is whether there is an arguable case that, if the Mayor's decision is quashed, the resolution or the grant of permission would fall to be quashed also.

26. In view of the application that had been made for judicial review, its contentions of illegality, and the relief that it sought, the Mayor on 24th January 2002 considered a further report on the planning application, so that he could express a further view on the strategic implications of the change of use of the land from employment to residential. The report concluded that there was sufficient justification in strategic planning terms to support the development as an exception to strategic employment policies. Copies of the report were sent on 30th January 2002 in a letter from the Mayor's solicitors to the other parties. The letter recorded that the Mayor had affirmed that he would not wish to see the planning application of 15th June 2001 refused. The fourth question that arises is whether, in the light of this expression of view on the part of the Mayor, permission should now be refused because the quashing of his earlier decision would be pointless.

27. Having identified the four issues that arise at this stage, I can deal with the first issue shortly. I am satisfied that the contention that the Mayor wrongly treated the principle of residential use as having been established by the April 2001 resolution is arguable. The correct interpretation to be placed on paragraphs 2 and 6 of the report of 7th September 2001 and the stage 1 report of 29th August 2001 is a matter of argument, but one reasonably available construction is that, as the claimant urges, the April 2001 resolution was being treated as determinative of the principle of residential use, so that the Mayor forbore to evaluate it in strategic terms. The ground of challenge relating to the views of the Government Office for London, on the other hand, does not appear to me to stand any reasonable chance of success. The stage 1 report factually records the view of the Government Office for London, and the Mayor was able to relate that view to his knowledge of his own emerging policies.

28. The second issue is whether the application has been made promptly. It was made seven weeks after the Mayor's decision and nine weeks after the resolution to grant planning permission. Richard Buxton, the claimant's solicitors, wrote to Brent on 7th November 2001 to say that advice was being sought on whether there were grounds for judicial review of the decision of 25th October 2001. They wrote again on 22nd November 2001 to say that they had been instructed to apply for judicial review of the Council's resolution and that they expected to issue proceedings within ten days. In neither letter was there any indication of any grounds that might be advanced. No letter had at that stage been written to the Mayor, and it is inferable that the Mayor's decision had not at that stage been identified as the basis of challenge. With no idea what the basis of any challenge might be, the Council had no reason to conclude that any challenge that might be made would stand any chance of success.

29. It was only on 6th December 2001 that Richard Buxton wrote to the Mayor, with a copy to Brent, giving notice of proposed proceedings in respect of the Mayor's decision of 7th November. By that time, 5th December, 14 days after the letter of 22nd November, planning permission had been issued. The decision of the Mayor had been made generally available to the public on his web site on 7th November, and on 9th November the Greater London Authority case officer wrote to 19 local residents who had petitioned the Mayor for refusal, advising them of the Mayor's decision.

30. Mr Straker submits -- and this is not contested -- that the applicant must have been aware of the decision at that stage. Her solicitors had acted in connection with the challenge to the April decision and they were thus familiar with the proposed development and the issues that it raised. No explanation for the delay is advanced.

31. In the light of these facts, I do not think that the proceedings were issued promptly. The short time given to the Mayor under the Mayor of London Order to make his decision whether to refuse would have been known to the claimant. It is, furthermore, an indication of Parliament's view that planning decisions should be taken expeditiously. With delay to the development having occurred due to the earlier proceedings, and with local residents and their solicitors evidently geared up to continue their resistance, the need and the ability to proceed expeditiously in relation to the resolution is apparent. In saying this, I bear in mind that fairness requires that local residents, who have no statutory right to challenge the grant of planning permission, should have sufficient time to decide whether to launch judicial review proceedings. But they must act speedily, and here they did not.

32. My view that the claimant did not in the circumstances act promptly is not dependent on the position of the developers, Bellway. They had commenced development on 6th December 2001, the very day after planning permission had been granted. Complaint was made to Brent that, in so starting operations, they were acting unlawfully because they were in breach of conditions requiring certain things to be done before development commenced. Brent agreed that this was so. Operations have now stopped, not, Bellway say, because they accept that they were acting unlawfully or were asked by Brent to stop, but because the preliminary contracts in question were completed. Bellway say that they had committed themselves to contracts for works costing £181,000 before they received a copy of Richard Buxton's letter of 6th December 2001 to the Mayor. I attach no particular importance to this in coming to my conclusion on promptness. At the most it seems to me to be illustrative of one feature of the general need for expedition in cases such as this.

33. The third issue is whether there is an arguable case that, if the Mayor's decision were to be quashed, the resolution or the grant of permission should be quashed also. Unless it was appropriate to quash the permission, there would be no point in proceedings to challenge the Mayor's decision, and this could therefore constitute a reason for refusing permission.

34. It is of course the case that there is no contention that the resolution to grant permission was unlawful in itself. Nor would it become unlawful if the Mayor's decision was quashed, or even if it was quashed and time was extended under section 31(5) of the Supreme Court Act 1981 and the Mayor then directed refusal.

35. Mr Harwood urged, however, that the court can and should give an effective remedy and, since the remedy would not be effective unless the planning permission were quashed, the court would be able to order that also, in addition to the quashing of the Mayor's decision. He referred to the R v Rochdale Metropolitan Borough Council ex parte Brown [1997] Env LR 100. The point seems to me to be one that the claimant should be allowed to raise if it was otherwise appropriate to grant permission, and I would not think it right to refuse permission, as Mr Humphries for Brent asked me to do, on the ground that the court could not or should not order the planning permission to be quashed.

36. I would add that the purely consequential nature of the challenge to the planning permission is illustrated by the fact that Brent were not even made defendants when proceedings were issued. Since it is their decision which is sought to be quashed, they clearly should formally be defendants and, at Mr Humphries' request, I ordered that they should be.

37. The fourth issue is the Mayor's reconsideration of 24th January 2002. The report that was prepared for that reconsideration set out the purpose of the reconsideration as follows:

"4. At the end of December 2001 application was made by a local resident to the High Court for a judicial review of the Mayor's decision of 7 November to not direct refusal. The application maintains that the Mayor erred in law, in both the stage 1 and stage 2 reports, in having regard to a resolution, made by Brent Council on 4 April 2001, to grant outline consent for a residential development on this employment site, a resolution also subject to judicial review, and on which Brent Council undertook not to act (without accepting any error in law).

"5. It is not accepted that the decision of 7 November 2001 was in any way unlawful or outside of the Mayor's powers. It is, however, recognised that the treatment given to the Brent Council decision of 4 April 2001 may not have been entirely satisfactory. It is not possible, as a matter of law, for the Mayor to redetermine his earlier decision. However, it is possible for him to express a further view on the strategic implications of the change of use of the land from employment to residential, without regard to the decision of 4 April 2001.

"6. It is the purpose of this report to enable the Mayor to express this further view. Any such view will be made known to the parties, the Court, and will be in the public domain."

38. The report said this about the outline application and the resolution upon it:

"11. The Council conceded, before the Mayoral decisions, that it should have prepared a scoping opinion for the outline application, and therefore agreed not to issue any decision notice. In view of such an undertaking, the judicial review has been withdrawn. The outline application remains before the Council but with the agreement of the applicant, it is being held in abeyance. The resolution has not been nullified in law and indicates that the local planning authority and the Government Office for London had no reason in policy terms to withhold planning permission, subject to the necessary Environmental Impact Assessment procedures being carried out."

39. The report then identified relevant strategic planning policies in the Adopted UDP, the Revised Deposit UDP (2001) and in Towards the London Plan (2001). It said this in particular about the application site:

"18. The strategic employment sites have yet to be identified. However, this site was identified in Regional Planning Guidance for London as an industrial business park and also in policy advice produced by the London Planning Advisory Committee in February 2000. This will clearly be taken into account in identifying the strategic sites for the London Plan."

40. Then followed a section headed "Analysis of strategic planning issues". It began as follows:

"19. The main strategic issue, and only outstanding issue of relevance to this report, is the consideration in strategic planning terms of the change of use of the land from employment to residential. The land use designation in the Adopted UDP is as an employment site, and the use for residential was a departure to the adopted UDP, and was treated as such. In the proposed replacement UDP, however, the site has been identified as a major opportunity site for housing. Brent Council made this redesignation as a balanced judgment on the suitability of the site for housing and the need for affordable housing within the Borough, set against the policy to retain employment land."

41. Then followed a discussion on the requirements of housing and employment, and the section concluded:

"24. The application therefore also requires a balance to be made between the Mayor's emerging policies and it is considered that the argument put forward by Brent to justify the change of use as outlined above was sound."

42. Finally, the conclusion said:

"28. It is therefore considered that the strategic need to increase significantly the supply of new housing in London, combined with the affordable housing contribution provided by this development in line with the Mayor's emerging policies, is a sufficient justification in strategic planning terms (RPG3, PPG3, Urban Task Force, Urban White Paper, LPAC and emerging mayoral strategies) to support this development as an exception to strategic employment policies."

43. Mr Straker said that this was effectively the reconsideration that the claimant was seeking, so that to quash the Mayor's decision would achieve no purpose. This is what he would decide if he had to decide the matter again. Mr Harwood strongly resisted the contention that this reconsideration provided the justification for refusing permission as a matter of discretion. He made a number of submissions on this point. He said firstly that the report, a copy of which was provided by Pitmans' letter of 30th January, was not the Mayor's view. That view had nowhere been expressed. Requests by Richard Buxton for a copy of the Mayor's decision had twice been refused. In fact, Pitmans, in a letter of 11th February 2002, confirmed that there was no decision letter in this case, in contrast to a situation where the Mayor was responding to planning applications that had been newly referred to him. They reiterated in a letter of 28th February 2002 that, because of the specific nature of the reconsideration exercise, there was no formal procedure in place for reporting it. Eventually, on 22nd March, a note of the Mayor's reconsideration appeared on the web site. This, it will be recalled, is how publicity is given to decision letters sent to councils on stage 1 and stage 2 references.

44. I can see no reason to doubt that the Mayor's view was that set out in the report. The letter of 30th January from Pitmans was evidently written on instructions and it carries the clear and necessary implication that the Mayor had accepted the report and adopted it as an expression of his views. It may well be that the making of decisions by the Mayor should in future be more formally noted, if only to avoid the sort of dispute that has arisen here, but I do not think it can seriously be argued that the report ought not to be taken as expressing the Mayor's view.

45. A more important argument advanced by Mr Harwood was that the Mayor had not, on the facts, approached the reconsideration with an open mind. Where reconsideration was required in order to make good a defect in an earlier decision, it was necessary, Mr Harwood said, that the right procedures should be followed. He referred to R v Legal Aid Board, ex parte Donn & Co [1996] 3 All ER 1. In the present case the Mayor was functus. He was not formally retaking his earlier decision. His lack of open-mindedness was, said Mr Harwood, shown by two things: firstly, the failure to provide a note of the decision and, secondly, the failure to follow the established post-decision procedures with a letter to the Council and an immediate entry on the web site. It was not, he pointed out, until 5.10 pm on Friday, 22nd March, with this hearing due to start on the following Monday morning, that the web site entry was made.

46. It does not seem to me that the particular post-decision matters of which Mr Harwood complains constitute any indication at all of a lack of open-mindedness on the part of the Mayor at the time of his reconsideration. They are, it seems to me, explicable on the basis that the normal procedures in stage 1 and stage 2 references were not obviously applicable where what was being done was not part of such processes. Mr Harwood made clear that he was not suggesting that there was bad faith on the part of the Mayor, and it is impossible in my view to infer that he approached the reconsideration with a closed mind, simply on the basis of the matters that Mr Harwood relies on.

47. Turning to the report itself, Mr Harwood said that it showed that the Mayor had again failed properly to address the issue of the strategic acceptability of the residential use, uninfluenced by the resolution to grant outline planning permission and in the manner required by section 54A. As to the first of these matters, the report accurately states that permission had not been nullified in law. Permission could still be granted on the outline permission; that is undeniable. It does not seem to me, however, that the report attaches significance to this. What it treats as significant is that, at the time of the resolution, the local planning authority and the Government Office for London had no reason in policy terms to withhold planning permission. That was a fact that clearly remained unaffected by the undertaking not to act on the 4th April 2001 resolution.

48. Mr Harwood says that the analysis of strategic planning issues in the report fails to address the matter from the standpoint of section 54A; it merely considers housing and employment in the context of Brent's Revised Deposit Replacement UDP and the Mayor's emerging policies. I cannot accept this. Paragraphs 19 to 24 proceed from an identification of the conflict with the statutory development plan to a consideration of the strategic issues that bear upon the question whether, in the light of such conflict, there is reason to object to the proposed development. The matter is not spelt out in formal terms but the substance of the view being expressed is quite clear: Brent's view justifying the residential use of the land was a sound one in the light of the strategic planning considerations that applied.

49. I should add that a further point advanced by Mr Harwood, that the conclusions paragraph is not obviously derived from what has gone before, has no force in my view. It is undoubtedly consistent with it and the parenthetical references it makes do not establish any inconsistency.

50. The reconsideration given by the Mayor cannot, therefore, in my view be said to have proceeded on the basis of an incorrect approach to the strategic planning issues. Were his decision of 7th November 2001 to be quashed, there is no reason at all to believe that any subsequent reconsideration he gave to the planning application would lead him to any different conclusions. In these circumstances I agree with Mr Straker that quashing would be a pointless exercise.

51. There are certain further points I should mention. Mr Straker referred to the R (Cowl) v Plymouth City Council [2002] 1 WLR 803 as showing the importance of avoiding judicial reviewlitigation wherever possible. Cowl was a challenge to the decision of a council to close two residential care homes, a decision that could no doubt have been reversed without the need for a quashing order. I can see that different considerations are likely to apply where what is in issue is a statutory decision that has to be formally set aside before it can be retaken. Nevertheless, it is right to bear in mind the general need to avoid litigation where possible.

52. On the question of promptness, Mr Harwood told me that the appeal in R (on the application of Burkett) v Hammersmith and Fulham LBC [2001] JPL 775 had been heard by the House of Lords on 4th and 5th March 2002. He suggested that, if I was minded to refuse permission on the grounds of delay, I should adjourn any decision until the House of Lords had given its decision in that case. Bearing in mind, however, the general need for expedition in a case such as this and also the fact that the application must in my judgment fail on the discretion point, I am satisfied that it would not be right to delay my decision.

53. Finally, Mr Harwood urged that the case concerned a matter of public interest, in that it raised for the first time the exercise by the Mayor of his statutory powers. Given the view that I take that any relief would necessarily be refused as a matter of discretion, this is a point that carries no weight.

54. The application is refused.

MR HUMPHRIES: My Lord, I ask for the costs of Brent London Borough Council to be paid by the claimant. Brent was, rightly, my Lord, joined as a defendant in this action. My Lord, the application has been refused in part on grounds advanced by the London Borough of Brent, although your third issue, my Lord, you found to be arguable. On the delay point and in particular the preaction letters sent to the London Borough of Brent, my Lord, on those grounds you have found the claimant did not act promptly.

My Lord, also relevant to your consideration, I suggest, is that in this case the London Borough of Brent has not been said to have acted unlawfully in any way and is here merely to defend what is a collateral challenge to its grant of planning permission, brought about by issues between the claimant and the Mayor of London. For those reasons, I ask for the Council's costs.

MISS BUSCH: My Lord, I am here to take judgment for Mr Straker. I have an application to make for the costs of the Mayor of London. My Lord, pursuant to that end, I draw your attention to the fact that Mr Justice Popplewell, when considering the application for permission on paper, specifically ordered that the matter should be dealt with at a hearing.

MR GEORGE BARTLETT QC: Yes. I do not think you need to say anything unless there is resistance to your application from ...

MR EDWARDS: My Lord, I do not think you actually have my name. I do not think anybody took it. It is Mr Martin Edwards.

MR GEORGE BARTLETT QC: I am so sorry. It may be -- I do not know -- that there is another application from Mr Walton. No, there is not, so, if you would like to reply to the applications that have been made ...

MR EDWARDS: My Lord, yes. You are correct in anticipating that there will be resistance to these applications for costs. Firstly, as your Lordship has pointed out, and as has been pointed out by Mr Humphries indeed, this matter came before your Lordship for an oral hearing at the permission stage as a result of the order of Sir Oliver Popplewell. So it is important to note that, of course, this permission was not refused on the papers but it was felt necessary to air the matter in court.

In my submission, I do not think that any case has been made out to depart from the general principle, which is that, even at a permission hearing, the court will not make an order for costs against the claimant. Your Lordship in his judgment has found that there was an arguable case on the one point, which relates to the Mayor's approach, and your Lordship has also indicated that the consequential matter which involves Brent was also a matter that it would be wrong not to refuse permission on, were you not to be refusing it on the other two grounds -- the question of delay and the question of discretion.

My Lord, on the question of delay, my submission is simply this: we cannot say with any degree of certainty whether or not the House of Lords will decide Burkett in a different manner. If it does, of course, and, for example, it decides that the date should be the date permission is granted, rather than the dates of any resolution leading up to it, my Lord, that, by any stretch of the imagination, would mean that this application for judicial review could not be considered to be an inordinate delay. Even judged against what I call the Burkett yardstick of six weeks, which, by the Court of Appeal's own judgment, is a very imprecise and rough and ready touchstone I think is the phrase, it is not an inordinate amount of delay.

On the question of discretion, as your Lordship has pointed out, the letters and reports from the Mayor, dealing with his reconsideration, were only made available to the claimant at the very last minute, in fact at the end of last week. In my submission --

MR GEORGE BARTLETT QC: Do you suggest that anything would have been any different if they had been made available earlier?

MR EDWARDS: Yes, I think that there could have been a great saving on this because, firstly, if we take the decision on discretion -- and I have heard what your Lordship has said -- the fact remains that the issue of delay is something which we hope we are going to get a definitive judgment on from the House of Lords very soon. So, therefore, it is one that I think is, if you like, left open.

On the question of the reconsideration, had the information been provided as requested, it is possible that those instructing me would have had time to reconsider whether or not they wished to proceed with this hearing. I do not think that a sufficient explanation has been given, not one that I have heard -- and, of course, I have a handicap of not being here yesterday. But I have not come across any explanation as to why that information was not provided until the very last minute.

I think, if one is going to be arguing delay, delay should work both ways. If it means delay on the part of the claimant, then equally there should be delay on the part of the respondent. That is certainly relevant to costs. It would have been far easier for the Mayor to have made his decision and the report available to claimant far sooner than he did.

So, my Lord, in my submission I say that no case has been made out by any of the parties for a departure from the normal rule that costs should not be awarded at a permission hearing.

MR HUMPHRIES: My Lord, the only short point I make is that, in the case of Brent, the delay is slightly different from the normal case because in our case the resolution was known about. The 14 day period was known about. We did actually withhold the granting of permission for the ten-day period indicated in the Buxton letter. No grounds were revealed to us. No action was started within that period, and we granted then the planning permission, and of course, in this case -- and you will note from the claim form itself it is the planning permission which is being challenged; there is no challenge to our resolution. And for those reasons the mere fact that the claimant did not seek some sort of stay or indicate to us that it was seeking an undertaking from us not to grant planning permission resulted in the grant, and therefore the challenge to that grant which has brought us here. So our position, my Lord, I say, is slightly different from the usual and we should be granted our costs.

MR GEORGE BARTLETT QC: Yes, Miss Busch.

MISS BUSCH: In my submission, the general principle that the defendant should not be granted costs in the permission application is clearly subject to exceptions, in particular exceptions in cases where it is appropriate or necessary for the defendant to incur costs in defending the claim. So, for example, my Lord, a defendant who successfully resists permission to apply for judicial review by filing an acknowledgment of service can, in fact, get the costs of doing so. Similarly, I would say, in the case where a judge -- in this case Mr Justice Popplewell -- has specifically suggested that it would be appropriate to hear the permission application in a hearing, it is clearly appropriate to make an exception to the general rule in finding that it is appropriate to award the defendant the costs of attending that hearing and defending the claim.

As to my learned friend's submission about the dates upon which the claimant received information that would enable it to determine whether or not it should pursue the claim, in fact the Mayor's solicitors wrote to the claimant on 30th January, affirming that the Mayor would not wish to see the planning application of 15th June 2001 refused. So the claimant had the information in question on 30th January and nevertheless pursued a claim which, in my submission, my Lord, is clearly spurious, chasing matters of principle rather than matters of substance and putting the defendant to quite unnecessary costs, which it should be able to recoup.

MR EDWARDS: My Lord, there are two points I think I ought to raise with you. Is your Lordship aware that my client is publicly funded?

MR GEORGE BARTLETT QC: Yes.

MR EDWARDS: You are aware of that?

MR GEORGE BARTLETT QC: Yes.

MR EDWARDS: Then I need not take the matter any further.

The reference I have just heard to the letter of 30th January is of course after the date of the acknowledgment of service. So it is not a question that the proceedings could have been avoided (inaudible) after these proceedings had been issued, after they had served the acknowledgment of service.

MR GEORGE BARTLETT QC: I am satisfied that there should be no order for costs in this case.

MR EDWARDS: My Lord, I think I need the usual legal aid order from the court.

MR GEORGE BARTLETT QC: Yes.

MR EDWARDS: Thank you, my Lord.

(Crown Copyright)