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High Court quashes Cinderford superstore permission for the third time

DATE: 06 May 2015

Singh J. has quashed a planning permission to Trilogy Developments Limited for a Class A1 retail store of up to 4,645m2 (gross) and related development (R (Midcounties) v Forest of Dean DC [2015] EWHC 1251 Admin).  The development site is at Steam Mills Road, which lies outside the town centre of Cinderford, Gloucestershire. The planning permission quashed is the third to have been granted by the Forest of Dean Council for the same proposal since March 2012.  The first permission was quashed by Stewart J on 4 July 2013 following a successful claim for judicial review brought by the same Claimant.  The second grant of permission, which followed the redetermination of the first application after the judgment of Stewart J, was quashed by Hickinbottom J on 30 September 2013 following another successful claim by this Claimant.  The planning permission quashed by Singh J. was a duplicate application. The Judge found Grounds 1 and 2 made out. These alleged that the Council had failed to consider the true extent of the harm caused to the town centre by the development and the Council’s approach to reg 122 of the CIL Regulations. 

There is an interesting postscript to the judgment on the position taken by the Council which did not appear to defend the claim for “financial reasons” but wrote a letter saying it supported the Interested Party’s opposition of the claim. 

The Judge said: 

“Postscript 

148.        As I have mentioned, the Defendant has not taken any active part in these proceedings and has left the Interested Party to defend its decision.  That is not unusual in a case where, for example, a defendant public authority concedes the claim for judicial review but an interested party wishes to resist the challenge and may well be successful in doing so.  What is unusual in the present case is that the Defendant has informed the Court in a letter that it does not concede the claim but, since it cannot afford to take an active part in the proceedings for financial reasons, it supports the Interested Party in its resistance to the challenge.  While it is readily understandable that public authorities are facing increasing financial pressures, the stance taken by the Defendant could lead to tension with certain fundamental aspects of the way in which judicial review proceedings are conducted. 

149.        It is well established that judicial review litigation is not to be conducted in the same way as ordinary civil litigation.  This is not only because there are specific provisions in Part 54 of the Civil Procedure Rules 1998 which govern judicial review.  More fundamentally, it is because the relationship between a public authority defendant and the court is not the same as that between an ordinary litigant and the court.  In particular it has been clear since the decision of the Court of Appeal in R v Lancashire County Council, ex p. Huddleston [1986] 2 All ER 941 that a public authority defendant in judicial review proceedings has a duty of candour and co-operation so as to assist the court in understanding its decision-making process and deal with the issues fairly.  It should conduct the litigation with its cards face upwards.  This is based on the concept that it acts in the public interest, and not merely to protect a private, commercial interest. 

150.        There are circumstances in which an interested party will also be subject to the duty of candour and co-operation: Belize Alliance of Conservation Non-governmental Organisations v Department of the Environment [2004] UKPC 6 [2004] Env LR 38, in particular at para 87 (Lord Walker of Gestingthorpe).  In that case the interested party and defendant were partners in a joint project.  However, this will not necessarily meet all the practical issues which may arise: for example, an interested party may not have in its possession all relevant documents in order to be able to assist the court to understand the decision-making process of the public authority whose decision is under challenge. 

151.        It seems to me that, if a defendant public authority finds itself in the position where it cannot, for financial reasons, defend its own decision in judicial review proceedings, and in particular where it cannot file a skeleton argument or make oral submissions at a substantive hearing, it should at least consider the following:

(1)          whether it has complied with its duty of candour and co-operation, by disclosing all relevant documents;

(2)          whether its duty of candour and co-operation requires it to file a witness statement to assist the court in understanding its decision-making process and dealing with the claim for judicial review fairly;

(3)          whether it should file an acknowledgement of service, with summary grounds of resistance, even if only in outline form, so that at least the gist of why it maintains that its decision is correct in law is explained;

(4)          whether a representative of the authority (not necessarily a lawyer) should be present in court at any hearing, so that the authority is in a position to know what is going on and it can rapidly take steps to deal with points which may arise unexpectedly or answer  judicial questions if invited to do so.” 

James Maurici QC and Gwion Lewis appeared for the successful claimant instructed by Hewitsons.

Christopher Katkowski QC and Graeme Keen appeared for the Interested Party instructed by Thomas Eggar Solicitors.