Case No. CO-9102-2010

Thomas & Co Ltd [1991] 1 Q.B. 471 at 484G, Simon Brown J. (as he then was) emphasised the need to proceed “with greatest possible celerity”, as he did also in R v Swale BC Ex p. Royal Society for the Protection of Birds [1991] 1 P.L.R. 6. Once a planning permission has been granted, a developer is entitled to proceed to carry out the development and since there are time limits on the validity of a permission will normally wish to proceed to implement it without delay. In the Exeter case, Simon Brown J. referred to the fact that a statutory challenge under what is now s.288 of the Town and Country Planning Act 1990 to a ministerial decision must be brought within six weeks of the decision. Thus if a planning permission is granted by the Secretary of State on an appeal or a called-in application, the objector seeking to question the validity of that decision must act within six weeks, without there being any power in the court to extend that period of time. 23 That factor led Laws J. (as he then was) to conclude in R v Ceredigion CC Ex p. McKeown [1997] C.O.D. 463, [1998] 2 P.L.R. 1 that it was nearly impossible to conceive of a case in which leave to move for judicial review would be granted to attack a planning permission when the application was lodged more than six weeks after the planning permission had been granted. That was perhaps a somewhat extreme statement of the position, and certainly it was rejected by the House of Lords in R. (on the application of Burkett) v Hammersmith and Fulham LBC (No.1) [2002] UKHL 23, [2002] 1 W.L.R. 1593 , where Lord Steyn (with whom the rest of the Appellate Committee generally agreed) said at [53] that from the McKeown case “the inference has sometimes been drawn that the three months limit has by judicial decision been replaced by a ‘six weeks rule’. This is a misconception. The legislative three months limit cannot be contracted by a judicial policy decision.”24 I would respectfully agree that, where the CPR has expressly provided for a three-month time limit, the courts cannot adopt a policy that in judicial review challenges to the grant of a planning permission a time limit of six weeks will in practice apply. However, that does not seem to me to rob the point made by Simon Brown J. and others of all of its force. It may often be of some relevance, when a court is applying the separate test of promptness, that Parliament has prescribed a six-weeks time limit in cases where the permission is granted by the Secretary of State rather than by a local planning authority, if only because it indicates a recognition by Parliament of the necessity of bringing challenges to planning permissions quickly. There are differences between the two situations: for example, where the Secretary of State grants a permission, an objector is entitled to be notified of the decision, which is not the case where a local planning authority grants the permission. Thus where in the latter case an objector is for some time unaware of the local authority decision, the analogy is less applicable. That was not the situation in the present case, where BLEW and its supporters, including the appellant, were very well aware of the decisions by the respondent's committee and then by the full council. My point is simply that, while there is no “six weeks rule” in judicial review challenges to planning permissions, the existence of that statutory limit is not to be seen as necessarily wholly irrelevant to the decision as to what is “prompt” in an individual case. It emphasises the need for swiftness of action. 53.In the present case, the Council and NFC Ltd contend that the proceedings were not issued promptly, primarily because of the delay between 20 July 2010 (by which time the statement of facts and grounds had been prepared by Mr Richards) and 26 August 2010 when the proceedings were actually issued. Furthermore, as Mr Village QC pointed out, the Claimant knew that this development was one of national importance, he is a solicitor himself and so knowledgeable about legal matters, he was very well informed about the basis of challenge and he is financially secure.54.The reason given by the Claimant for not issuing the proceedings immediately the relevant documents had been drafted is that he wished to obtain After the Event (“ATE”) insurance before embarking on the proceedings and the insurers would not approve the provision of such insurance, without seeing and having an opportunity to consider the relevant documents and Counsel’s advice. Once the insurance was in place, the proceedings were issued. Mr Richards submits that there is nothing in the suggestion that ATE insurance would only usually be sought after permission to bring Judicial Review had been granted. He points to the need for someone in the position of the Claimant to protect himself against the potential costs liability of an unsuccessful application for permission, demonstrated by the amount of costs sought by NFC Ltd in the present case.55.That point might have some force coming from a litigant who did not have much in the way of financial resources, but I am not convinced that someone in the position of this Claimant who sold his company for a substantial sum of money and is a significant owner of local land needed the protection of ATE insurance before issuing proceedings. Of course he was entitled to obtain such insurance if he wished to, but in my judgment that should not have held up the issue of proceedings. 56.Accordingly, I consider that these proceedings were not issued promptly. There was certainly not the swiftness of action referred to at the end of the passage from the judgment of Keene LJ in the Finn-Kelcey case quoted above. It is irrelevant in that context whether or not that lack of promptness has caused specific prejudice to the defendant or an interested party, although despite the Claimant’s arguments to the contrary, I do consider that any delay in commencing the construction may imperil the intended use of the NFC during the 2012 Olympics and that it follows that NFC Ltd can show prejudice caused by the lack of promptness of the Claimant in bringing these proceedings. It follows that I would have concluded in any event that this application for permission should not be allowed, because the claim form had not been filed promptly. The point is in fact academic because, for the reasons I have given, I do not consider that any of the grounds put forward by the Claimant is arguable.57.In those circumstances, both the Council and NFC Ltd apply for an order for costs against the Claimant. In the case of the Council, the costs sought are both preparation costs and acknowledgment costs totalling in the region of £8,800 plus VAT. NFC Ltd claim preparation costs, acknowledgment costs and the costs of the evidence which was filed on behalf of NFC Ltd. Those costs total just under £28,000 plus VAT.58.Mr Richards resists any order for costs which goes beyond acknowledgment costs, which he submits should be limited to the costs of producing short summary grounds. In that regard he relies in particular upon the decision of the Court of Appeal in R (Roundham & Larling Parish Council) v Breckland Council [2008] EWCA Civ 714; [2009] Costs LR 282. In that case the Court reiterated and endorsed what had been said by Sedley LJ in R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166 at paragraphs 21-22, that when “preparation” costs are sought in addition to “acknowledgment” costs (in the sense of settling a short form summary grounds of resistance), it will be for the defendant and/or interested party to justify these, which may well not be recoverable and that the question of whether those costs are also recoverable should be decided by the trial judge (in this context the judge who hears the oral permission application): see per Buxton LJ in the Breckland Council case at paragraphs 26 to 31. 59.Whilst in a straightforward case, it can legitimately be said that the defendant or an interested party should limit himself to summary grounds of resistance, this is not a straightforward case. The planning decision which is under attack is of national importance given its impact on the viability of the proposed centre of excellence. Furthermore, the grounds raised by the Claimant were ones which required some detailed analysis and dissection by both the Council and the FA/NFC Ltd if they were to be challenged effectively. NFC Ltd was also entitled to put into its grounds submissions about lack of promptness. 60.I reject the suggestion on behalf of the Claimant that it would have been sufficient or even appropriate to put in just summary grounds of resistance. However, I am not convinced that it was necessary for NFC Ltd to go beyond the detailed grounds of resistance which they did file, by also filing the witness statements they produced.61.In my judgment, the right order is that the Council and NFC Ltd should recover from the Claimant both their reasonable preparation costs and their acknowledgment costs (which for the avoidance of doubt should include the summary grounds actually filed but exclude any witness statements), those costs to be assessed if not agreed. I propose to make an order for interim payment in the meantime. I am prepared to receive whatever written submissions counsel wish to put forward as to the amount of such interim payment and time for payment, but my current view would be that the amounts should be £6,000 in the case of the Council and £12,000 in the case of NFC Ltd, the latter lower percentage reflecting a concern I have about the size of the costs bill put forward by the Interested Party. It seems to me that in each case that amount should be paid within 21 days.