Bias — Planning committee refusing application for planning permission for housing — Rival builder a member of committee — Whether improper
review — Costs — Substantive issue academic by time of hearing before judge —
Judge deciding substantive issue in order to determine question of costs —
Whether proper — Whether Court of Appeal should entertain appeal against
decision on costs
The appellant
company were speculative builders based in Withernsea, some four miles from
Patrington, each a small town in Humberside in the area of the respondent
council. In 1989 they acquired a two-and-a-half-acre site in Patrington, sold
with the benefit of outline planning permission for housing. Subsequently they
submitted a number of applications for approval of reserved matters, each of
which was refused. H, a rival builder in the area, was chairman of Patrington
Parish Council, who were opposed to the appellants’ scheme. He was also a
district councillor and sat on the planning committee. As a member of that
committee he spoke and voted against the applications on each occasion they
were rejected. The appellants sought judicial review of the decisions of the
planning committee, contending that as a rival developer in the same area, H
should have debarred himself from taking part in the consideration of the
appellants’ applications. Leave to move was granted on December 15 1989, but
before the matter was due to be heard a further, revised, planning application
was submitted, which the council approved in March 1991. At the local
government elections in May 1991 H lost his seat on the district council, so
that the judicial review proceedings became wholly academic. On November 25
1991 they were heard by Popplewell J solely as an application for costs (which
were said to be substantial), but it was accepted by both parties that the
question of costs depended on resolution of the substantive issue. The judge
held that he would not have granted judicial review and, accordingly, awarded
costs to the respondent council. The appellants appealed with leave of the
judge. At the hearing of the appeal, the court raised as a preliminary issue
the question whether such an appeal should be entertained at all.
1. Per
Dillon and Butler-Sloss LJ (Simon Brown LJ dissenting): since the court could
not debar the parties from obtaining a decision on who should pay the costs,
and since the court was not in a position to assess the correct costs order
without an evaluation of the prospects of success
had jurisdiction to entertain the application for costs and, in so doing, to
decide the substantive issue which otherwise would not have been tried. As the
judge was both entitled and right to hear the case, and had given leave to
appeal, the Court of Appeal should hear an appeal from his decision and decide
the substantive question: see pp 119E-120A and 121G-122E.
2. It was too
far-fetched to suggest that H had ‘a pecuniary interest direct or indirect’ in
the outcome of the appellants’ planning applications such as to offend against
section 94 of the Local Government Act 1972 or the council’s standing orders,
which repeated the wording of section 94: see pp 112H, 120C-D and 123B-C.
3. Per
Butler-Sloss and Simon Brown LJ (Dillon LJ dissenting): the general proposition
that a builder ought not to sit on a planning committee hearing the application
of a rival builder carrying on business in the same area was too wide. The
judge was right to find on the facts that the link between councillor H and the
appellants was too tenuous to support a successful natural justice challenge.
There was no real likelihood of bias, nor would there be a reasonable suspicion
of bias in the minds of right-minded people: see pp 111C-112H and 120D-121D.
Decision of
Popplewell J affirmed.
to in the judgments
Ainsbury v Millington [1987] 1 WLR 379; [1987] 1 All ER 929, HL
Meade v Haringey London Borough Council [1979] 1 WLR 637; [1979] 1
All ER 1016; [1979] ICR 494; (1979) 77 LGR 577, CA
Metropolitan
Properties (FGC) Co Ltd v Lannon [1969] 1 QB
577; [1968] 3 WLR 694; [1968] 3 All ER 304, CA
National
Coal Board v Ridgway [1987] 3 All ER 582;
[1987] ICR 641; [1987] IRLR 80, CA
R v Barnet London Borough Council, ex parte Field [1989] 1 PLR
30
R v Hendon Rural District Council, ex parte Chorley [1933] 2
KB 696; 31 LGR 332; 49 TLR 482, DC
R v Liverpool City Council, ex parte Newman unreported, July
13 1992
Sun Life
Assurance Co of Canada v Jervis [1944] AC
111; [1944] 1 All ER 469, HL
Westminster
City Council v Croyalgrange Ltd [1986] 1 WLR
674; [1986] 2 All ER 353; (1986) 83 Cr App R 155; 84 LGR 801; 150 JP 449, HL
Appeal against
decision of Popplewell J
This was an
appeal by James Robert Developments Ltd against the decision of Popplewell J on
November 25 1991 whereby, on an application for the costs of proceedings for
judicial review of decisions of the planning committee of Holderness Borough
Council, he made an order for costs in favour of the respondent council. The facts
are stated in the judgments.
Macdonald QC and Richard Newbury (instructed by Stamp Jackson & Proctor, of
Hull) appeared for the appellants, James Robert Developments Ltd.
Gerry (instructed by the solicitor to Holderness Borough Council) appeared for
the respondents.
following judgments were delivered.
SIMON BROWN
LJ: This is an appeal, with the leave of the judge
below, against an order for costs made on November 25 1991 in favour of the
respondents upon the dismissal of the applicant’s motion for judicial review.
It is an unusual appeal, I would suggest unique. For this reason: although in
form an appeal against costs, in substance it is an appeal against the judge’s
decision upon the substantive issue raised in the judicial review proceedings,
an issue which by the time the judge was seized of it was entirely academic and
which was resolved solely to determine the question of costs.
I, for my
part, regard this as a profoundly unsatisfactory basis for an appeal to this
court, with or without the judge’s leave, and would have preferred to dismiss
the appeal on that ground alone, without even embarking upon consideration of
the substantive issue. Given, however, that the court, having raised this
preliminary issue and heard argument upon it, then de bene esse embarked
upon the substantive hearing; and given that my lords have since formed the
view that the appeal was properly brought and falls to be determined upon the
substantive issue, but, alas, have reached differing conclusions upon it, it
seems to me essential that I indicate my view upon that issue as well as the
reasons why I myself would have preferred not to entertain the appeal at all.
First, however,
I must sketch in the basic facts of the case. They can be shortly stated. The
appellants (the applicants below) are speculative builders. They are based in
Withernsea, some four miles from Patrington, each a small town in the
respondents’ area of Humberside. In April 1989 they acquired for development a
two-and-a-half-acre site in Patrington, sold with the benefit of an outline
planning permission for housing. No assurance had been given as to the number
of houses that would be permitted and all matters of density, design,
appearance and landscaping were reserved for future consideration. From that
time until planning permission upon the reserved matters was finally granted in
March 1991, ie for a period of some two years, the appellants submitted a succession
of schemes, each of which until the last was rejected. Four separate
applications were made, some with subsequent modifications. It was the
respondents’ sworn evidence that permission was ultimately granted when the
scheme allowed for a sufficient area for proper landscaping, a final
modification which satisfactorily met their last outstanding objection. The
development site was, it should be noted, within a conservation area and thus
raised sensitive planning considerations. There is, of course, a statutory
right of appeal to the Secretary of State against a refusal of planning
permission. Not once did these appellants exercise it.
Throughout the
period when the appellants were seeking to secure their planning permission,
Patrington Parish Council were strongly opposed to the scheme, certainly in all
its earlier manifestations. Mr Hunter was its chairman. He was also a district
councillor with a seat on the respondents’ planning committee. It is not
disputed that as a member of that committee he spoke and voted consistently
against the applications, until perhaps the last. The burden of the complaint
raised
disqualified himself from sitting on the planning committee in respect of the
appellants’ applications. Not because he was the chairman of the parish council
within which this development site was located; that contention is expressly
disavowed by Mr MacDonald QC for the appellants. But rather because he, too, is
a builder and developer within this self-same area of Humberside. He owns two
companies in Patrington: one which had recently carried out building work on a
nearby site under contract to other developers; a second which, like the
appellants, undertakes speculative building in the general vicinity. Contrary,
however, to one of the contentions originally advanced by the appellants,
neither company had bid for or ever been interested in this particular
development site.
Substantive
issue
The essence of
the appellants’ case upon their motion for judicial review — an essence
distilled from a very considerable volume of documents before the court-is that
it is always and necessarily improper for one builder to sit upon a planning
committee considering applications for development permission submitted by a
rival builder. For Councillor Hunter to have participated in the deliberations
upon their applications was, contend the appellants, a clear breach of the
rules of natural justice. Even assuming that actual bias on his part could not
be demonstrated — and, in my judgment, it plainly could not — his involvement
gave, it is said, the appearance of bias. Whether the proper test be one of
real likelihood or of reasonable suspicion, it is, counsel submits, satisfied
here. Whether the question put is ‘did the situation give rise to a real
likelihood (in the sense of a real probability) of bias?’, or ‘might people
alive to the facts have had a reasonable suspicion that these applications were
not being impartially considered?’, the clear answer for which Mr MacDonald
contends is ‘yes’. I myself, doubt whether the two tests are significantly
different. If one asks ‘was the adjudicator probably biased?’, one is really
asking no more than whether his personal involvement in the matter was such
that, on balance, he could not reasonably be thought able to bring an impartial
mind to bear upon it (whether or not he himself was aware of such inability).
And if one asks ‘might people reasonably suspect him of bias?’, one is surely
asking ‘might people reasonably doubt whether he was able to be
impartial?’ it being implicit in the
question that, if so, then some people at least would think he probably could
not.
The basis upon
which the appellants contend that Councillor Hunter, or indeed any builder
adjudicating upon a rival builder’s application for residential development
permission, should be regarded as unlikely to have acted impartially or as open
to the reasonable suspicion of partiality, is set out in their skeleton
argument as follows. His position on the planning committee would, it is said,
give him ‘the opportunity (1) to assert his local superiority over potential
rivals and competitors and thereby deter them, (2) to cause a rival to suffer
delay, (3) to tie up a rival’s capital and/or borrowing capacity in a redundant
asset, (4) to restrict the supply of housing to his own companies thereby
causing
to dictate the terms of the granting of planning permission by means of density
of houses, or mix or type or construction of houses and by specified works on
amenities so as to reduce the profitability of a site to a rival, (6) to
disrupt a rival’s business plans, (7) to cause a rival expense in legal, architect
and planning fees by repeated applications, (8) to embarrass a rival with local
suppliers, customers and tradesmen, (9) to force a rival to sell the land at a
loss, (10) to have the land bought subsequently on his behalf at a reduced
price’.
However sceptically
one may regard the integrity of local government decision making as a whole,
those contentions, I am bound to say, strike me as altogether too cynical. No
doubt in an ideal world no one would ever adjudicate upon another’s cause if it
gave him the very least opportunity to advance some interest of his own,
however indirectly. No doubt the very most fastidious of Councillor Hunter’s
friends, if asked whether he should sit on the planning committee dealing with
these appellants’ applications, might have suggested that perhaps it would be
best if he did not. But I can hardly think that all his friends would
clearly thus have advised him and, in my judgment, it is going too far to say,
as we are invited to do upon this appeal, that the mere fact of being a rival
builder (perhaps one of many) within a provincial planning district necessarily
disqualifies one from sitting on the planning committee.
The ‘good
friend’ test, comes, it should be noted, from this passage in the judgment of
Lord Denning MR in Metropolitan Properties Co (FGC) Ltd v Lannon
[1969] 1 QB 577 at p 600:
Test it quite
simply: if Mr John Lannon were to have asked any of his friends: ‘I have been
asked to preside in a case about the rents charged by the Freshwater Group of
Companies at Oakwood Court. But I am already assisting my father in his case
against them, about the rent of his flat in Regency Lodge, where I am living
with him. Do you think I can properly sit?’
— This, I
would interpolate, in the context of a dispute in which the rents to be
determined for Oakwood Court would be influential ‘comparables’ when it came to
determine the Regency Lodge rent —
The answer of
any of his good friends would surely have been: ‘No, you should not sit. You
are already acting, or as good as acting, against them. You should not, at the
same time, sit in judgement on them’.
The facts of
that case and, as it seems to me, of the various other reported cases where
decisions have been struck down on grounds of apparent bias, appear
significantly more extreme than those of the present case.
I would,
therefore, uphold the judge’s decision in the present case that the link
between Councillor Hunter and the appellant developers was too tenuous to
support a successful natural justice challenge, let alone an allegation that Mr
Hunter had ‘a pecuniary interest direct or indirect’ in the outcome of these
planning applications such as to offend against section 94 of the Local
Government Act 1972.
An
appropriate case for appeal?
I turn to the
other question raised upon this appeal: should this court ever have entertained
it at all? In this regard it is
necessary first to indicate something more of the chronology of the case.
The
application for judicial review was made on October 5 1989, leave being given
on December 15 1989. That was shortly before the appellants’ third planning
application was refused. A year later, in December 1990, a fourth application
was made. It was this one, in revised form following a meeting with the
respondents’ planning officers, which was finally granted in March 1991.
Meanwhile, the judicial review application, which had been fixed for hearing on
February 7 1991, was stood out of the list to await the result of the pending
fourth application.
At the local
government elections in May 1991, Councillor Hunter lost his seat on the
respondent council.
Thereafter,
the proceedings were re-listed for hearing on November 19 1991. By that stage,
the only interest left in them was the question of costs. The proceedings
themselves were academic. Indeed, doubly so. The appellants had secured their
desired planning permission. And Councillor Hunter could not in any event
deliberate upon future planning applications.
The appellants
were insisting on their costs as a condition of discontinuing. In a without
prejudice letter dated September 26 1991, shown to this court with the consent
of both parties, the respondents’ solicitor wrote to the appellants: ‘I agree
that it is no one’s benefit to go to Court and would suggest that the matter be
agreed on the basis that both parties pay their own costs’. He added, however,
that if no such agreement could be reached, the respondents would seek their
costs at the hearing on November 19.
No agreement
being reached, the matter came before Popplewell J on November 19 1991. The
court record shows that the hearing lasted just 45 minutes and that the only
relief being sought as an order that the respondents pay the costs of and
incidental to the judicial review motion. Judgment was reserved. As the judge
observed when he came to deliver it on November 25:
It was not
necessary . . . [planning permission having by then been granted] for there to
be a hearing of judicial review and the application which I heard was in
relation to the costs of the application for judicial review.
It is
accepted by both parties that the question of costs depends on my view as to
the success or otherwise of the application for judicial review.
It is evident that
the judge felt able to deal with the matter of costs (a) without a protracted
hearing, and (b) on the footing that the substantive issue was, as he said in
his judgment, ‘a decision on the facts of the case and I lay down no new
principles’. Had it been otherwise, I would not have thought it right for him
to have dealt with the substantive issue as he did.
In this regard
I would draw attention to two first instance decisions bearing upon the matter
as it stood before the judge.
The first is R
v Barnet London Borough Council, ex parte Field [1989] 1 PLR 30 in
which, in circumstances not unlike the present, Farquharson J had to determine
a motion for costs in respect of a judicial review application which had been
rendered otiose by subsequent events. In the course of his judgment he said
this (at p 32A):
In those
circumstances, to determine whether he was entitled to any costs for the
launching of these proceedings, it became necessary, evidently, for counsel to
argue the case as though the substantive application or motion was being heard.
It is,
perhaps regrettable that the parties somehow or other could not have got
together at an early stage to resolve this question of costs without incurring
what is now going to be further costs of a day-and-a-half. Why that happened or
failed to happen, I do not know.
Although
obviously unhappy at the position, Farquharson J nevertheless then proceeded to
determine the substantive point originally at issue and to decide the issue of
costs accordingly.
The second is
a more recent decision of my own in R v Liverpool City Council, ex
parte Newman (transcript, July 13 1992). The court was there faced with a
slightly different situation: an application to discontinue a judicial review
challenge, the issue before the court being the terms of such discontinuance,
in particular whether there should be no order for costs (as the applicants
contended) or an order in the respondents’ favour. In finding for the
applicants, I sought to identify various categories of case. First, those where
judicial review proceedings can be shown to have been discontinued consequent
upon the applicants’ recognition of the likely failure of his challenge — when
the respondents should clearly recover their costs. And then those cases where
a step has been taken such as to render the proceedings from that point on
academic. I pointed out that that might have been brought about for a number of
reasons and of those cases I said:
If, for
instance, it has been brought about because the respondent, recognising the
high likelihood of the challenge against him succeeding, has pre-empted his
failure in the proceedings by doing that which the challenge is designed to
achieve — even if, perhaps, no more than agreeing to take a fresh decision — it
may well be just that he should not merely fail to recover his own costs, but,
indeed, pay the applicant’s.
On the other
hand, it may be that the challenge has become academic merely through the
respondent sensibly deciding to short-circuit the proceedings, to avoid their
expense or inconvenience or uncertainty without in any way accepting the
likelihood of their succeeding against him. He should not be deterred from such
a course by the thought that he would then be liable for the applicant’s costs.
Rather, in those circumstances, it would seem to me appropriate that the costs
should lie where they fall and there should, accordingly, be no order. That
might equally be the case if some action wholly independent of the parties had
rendered the outcome of the challenge academic. It would seldom be the case
that on discontinuance this court would think it necessary or appropriate to
investigate in depth the substantive merits of what had, by then, become an
academic challenge. That, ordinarily, would be a gross misuse of this court’s
time and further burden its already over-full list.
In my
judgment, this case is clearly one where this court cannot hope, in a short
time, to discern what the likely outcome of the challenge would have been had
it been litigated to a conclusion.
What, to my
mind, was different in that case to the position arising here and in Field
was not that the application there was ostensibly one to decide the terms of
discontinuance: in effect the present case also involved discontinuance, no
relief other than costs being sought. Rather, it was that neither party there
thought it appropriate to seek to resolve the dispute as to costs by litigating
to a conclusion what had become an academic issue. I would hold to what I said
there, namely that: ‘That ordinarily would be a gross misuse of this court’s
time and further burden its already over-full list’. Not only, moreover, is
there the problem of pressures upon the court’s time. There is the further
important consideration that the judicial review jurisdiction is, in any event,
a discretionary one, relief not infrequently being refused if an alternative
remedy is available or where the remedy being sought would be futile or
unnecessary.
I recognise,
of course, that costs applications have to be entertained and resolved. But
not, I would suggest, by litigating the case for all the world as if the
substantive issues need to be resolved for their own sake. In my judgment, an
altogether broader approach should be adopted. One which enables the court in a
comparatively short time to decide, and decide, moreover, without giving a
fully-reasoned judgment, into which general category of discontinuance the case
falls.
Still less
would it seem to me appropriate to decide in judicial review proceedings at
first instance, merely with a view to determining costs, a root point of
principle of some difficulty which in itself is of no possible application to
the parties before the court but which could very well profoundly affect others
up and down the country. Not least of the difficulties of that would be the
creation of the very sort of problem of appeal arising here.
The judge in
the present case, as already pointed out, had no thought of deciding a matter
of general principle. Rather, he was intending to decide a narrow issue on the
facts and felt able to do so without great difficulty and without expending
much time. Had it been otherwise, I would have thought it inappropriate for him
to decide it at all.
I pass to the
next question that arises, assuming for this purpose that the judge was
entitled to decide the issue of costs in the manner he did.
Should he then
have given leave to appeal? It is
perhaps understandable that he did. After all, no one suggested the contrary
and, implicit in his expressed doubt whether leave was in any event necessary,
he clearly had in mind that leave to appeal is not ordinarily required in
judicial review proceedings. But this was not an ordinary judicial review case
and to my mind leave should have been refused.
Whatever be
the position as to that, however, the grant of leave cannot bind this court to
entertain the appeal if otherwise it is inappropriate to do so. And, in my
judgment, here it is inappropriate. To indicate why, it is necessary first to
look at a series of decisions of this court and the House of Lords touching on
the question.
The starting
point is Sun Life Assurance Co of Canada v Jervis [1944] AC 111.
The House of Lords there declined to entertain an appeal when the conditions
imposed for the grant of leave were such that it had become a matter of
complete indifference to the respondent whether the appellant won or lost.
Viscount Simon LC said (at p 114):
. . . I think
it is an essential quality of an appeal fit to be disposed of by this House
that there should exist between the parties a matter in actual controversy
which the House undertakes to decide as a living issue.
And that was
held to be so despite the appellant’s interest in having the House decide the
point at issue — a point as to the rectification of one of their policies of
insurance — since it was bound to affect other similar policies which they had
issued.
Next, Meade
v Haringey London Borough Council [1979] 1 WLR 637. Put shortly, parents
there were seeking to enjoin the local authority to procure the reopening of schools
which had been closed for four weeks through strike action. On the very day the
hearing began before the Court of Appeal the strike was called off and the
schools were opened. On that particular point Lord Denning MR said (at p 645E):
There was no
longer any need for an order by the court. But we proceeded to hear the case
for two reasons: one, because the costs of the legal proceedings would depend
on whether the parents were justified or not in making their applications;
second, because it was of importance to all concerned that the legal position
should be ascertained. In case the same thing should happen again next year. It
is of much importance to parents — and to society at large — to know whether or
not the parents can come to the courts when their children are deprived of
their education in this way.
Next, Westminster
City Council v Croyalgrange Ltd [1986] 1 WLR 674, an appeal from the
Divisional Court by leave of the House of Lords on a certified point of law of
general public importance in regard to the ingredients of the offence of using
premises as a sex establishment. The appellant council made clear to the House
of Lords that, having regard to the nature of the case and the lapse of time
since the alleged offence had been committed, they would not in any event be
asking the House to remit the case for the respondents to be convicted. Lord
Bridge of Harwich said (at p 678D):
The sole
purpose of the appeal, so it is said, is to clarify the law for the future. The
House will not, of course, entertain appeals on academic questions, but since
the issue of costs remains at large, it cannot be said that there is no lis
sufficient to keep the appeal alive.
Next, National
Coal Board v Ridgway [1987] 3 All ER 582, in which the Court of
Appeal was concerned with an appeal from the Employment Appeal Tribunal, and
was required first, at the suit of the NCB, to determine a preliminary point as
to whether there was any sufficient continuing lis between the parties
to warrant the court proceeding with the substantive hearing. May LJ said (at p
589 g-h):
For my part I
respectfully took the view that . . . now that the board had rescinded and
backdated the pay cuts which they had imposed on these appellants . . . there
was in truth no continuing lis between the parties and that we should decline
to hear these appeals further. Further, in my opinion, the argument that until
the appeal is heard the costs of it cannot properly be provided for merely begs
the question. However, Nicholls and Bingham LJJ disagreed with my view on these
points and accordingly we proceeded to hear the substantive appeal on its
merits.
Nicholls LJ
referred to the appellants’ claims for further compensation which were not
conceded by the Board and continued (at p 594 f-g):
The claims for
further compensation, exiguous though they may be, are still alive and extant,
and cannot be disregarded as de minimis. I was not, and am not, persuaded that,
if the appeal were to succeed, the appellants will not pursue these claims for
further compensation or that these claims will be bound to fail. . .
In those
circumstances, although the financial fruits coming to the appellants if their
appeal were to succeed would be, at best, comparatively insignificant, I did
not and do not think that this court was entitled to refuse to hear this appeal
if the appellants wished to pursue it.
Bingham LJ
also thought it right to entertain the appeal, essentially for three reasons:
first, because the appellants were pursuing claims which were not accepted;
second, because the appeal raised important questions of legal principle; and,
third, because there was outstanding questions of costs. That appears from the
following passage in his judgment at p 604 c-g):
More
generally, the board submitted that these were not genuine claims but mere
pretexts designed to keep the appeal alive. The appellants have never
particularised their damage claims, but it may very well be that these claims
are an afterthought which would never have been pursued but for the appellants’
desire to argue the appeal. That does not, however, even if true, entitle this
court to brush the claims aside as being illegitimate or of no consequence. Nor
can I regard the desire of the appellants (or their union) to argue the appeal
as vexatious or reprehensible. The tribunal’s decision and the judgment of the
EAT contain rulings on questions of legal principle which will or may affect a
significant number of other cases. The parties have spent time and money
litigating these questions up to this level. Much of that time and money would
have to be spent all over again if, in any later case raising the same
questions, it were sought to challenge the existing ruling of the EAT. That
would not in my view be creditable to our legal system. All cases must of
course be viewed in the light of their own peculiar circumstances, but I do not
think that this could ever have been seen as a case in which the argument on
one side or the other was likely to go by default because there was any lack of
concern about the outcome. In the event, I am quite sure that the appeal could
not have been argued with greater care and skill if the board’s offer to pay
the arrears of wages to the appellants had never been made. I do not, however,
regard this as being a case in which the court had a choice whether to hear the
appeal or not: so far as I know, no agreement had been reached concerning the
costs of the appeal, and it would seem that that of itself provides sufficient
lis to keep the appeal alive (see Westminster City Council
per Lord Bridge).
The final case
in point in Ainsbury v Millington [1987] 1 WLR 379, another
decision of the House of Lords. The appellant had sought an injunction
requiring the respondent to vacate a council house. The trial judge and the
Court of Appeal having held that there was no jurisdiction to hear her
application, the appeal was said to raise a question of law of general
importance which different decisions of the Court of Appeal had left in doubt.
The House of Lords had accordingly given leave. The problem was that by the
time the appeal came on for hearing, the local authority had resumed possession
of the relevant house and had granted the appellant and her husband the tenancy
of another. The outcome to the parties was thus academic. Both were legally
aided with a nil contribution. Lord Bridge of Harwich said (at p 381B):
It has always
been a fundamental feature of our judicial system that the courts decide
disputes between the parties before them; they do not pronounce on abstract
questions of law when there is no dispute to be resolved.
Different
considerations may arise in relation to what are called ‘friendly actions’ and
conceivably in relation to proceedings instituted specifically as a test case.
The instant case does not fall within either of those categories. Again
litigation may sometimes be properly continued for the sole purpose of
resolving an issue as to costs when all other matters in dispute have been
revolved. Realistically counsel did not suggest that the possibility in this
case of either party being ordered to pay the costs of the other, which in
practice is so remote as to be negligible, could be regarded as affording a
sufficient lis inter partes to keep the appeal alive.
What, then, is
the effect of these cases? The
principles I deduce from them are as follows:
1. That the
courts will not entertain an appeal where there is no lis between the
parties, when in other words the question who wins is a matter of complete
indifference to one if not both of the parties before the court. In Sun Life
Assurance that was true of one party; in Ainsbury v Millington,
of both.
2. That first
principle holds good irrespective of whether the substantive point at issue is
one of general public importance.
3. Provided
that there remains a lis between the parties — even if it be only the
unresolved issue of costs — the court can continue to entertain an appeal.
4. Where the
only remaining lis between the parties is an unresolved issue of costs,
it will be within the discretion of the appeal court (be it the Court of Appeal
or the House of Lords) whether or not to entertain the appeal. It seems to me
that they would be unlikely to do so unless a point of general importance
arises.
That this is a
matter of discretion seems to me evident from the terms of Lord Bridge’s speech
in Ainsbury v Millington. I do not understand his earlier
comments in Westminster City Council v Croyalgrange Ltd any
differently and nor does it appear that the majority of the Court of
Appeal in National Coal Board v Ridgway so understood them. Only
Bingham LJ actually referred to Croyalgrange and certainly he alone
appears to have suggested that the court had no choice but to hear the appeal.
How then
should those principles be applied in the present case? At first blush, it might appear that, now
that the point raised is urged upon us as one of general importance, and given
that costs (very substantial costs on the figures suggested to us) remain in
issue, we should hear the appeal without more ado. But that is to ignore what,
to my mind, is the unique and decisive feature of this case: that the issue
here was only ever decided as an issue going to costs. I know of no other case
where, a substantive issue having already been decided solely in relation to
costs, an appeal court has then decided it afresh for the self-same limited
purpose. Certainly none of the five appeal cases which I have sought to examine
appear to have contemplated such a course.
Can it really
be an appropriate use of court time (not to mention the parties’ ever
escalating costs) to resolve in a series of decisions (including perhaps the
House of Lords hereafter?) what, in all other respects, is a purely academic
question, even if an important one, just so as to deal fairly and properly with
the costs incurred by the parties before that question became academic? I would hold not. I would suggest instead
that the costs can and properly should be dealt with once only, and even then
generally on a broad-brush approach. That would not seem to me unfair. And it
would certainly be a great deal more economical and expeditious.
On either of
the approaches I adopt to this appeal, in my judgment it fails. I would
accordingly dismiss it.
BUTLER-SLOSS
LJ: The first question is whether the court should
entertain an argument on an important issue of general importance which arises
as a by-product of an argument on costs. The issue itself is now academic since
the appellants have been granted planning permission to develop the land in
dispute and the councillor, the subject of criticism, has lost his seat on the
borough council. Both these matters took effect prior to the hearing before
Popplewell J.
It is not the
function of the courts to make decisions on academic issues of law where there
is no dispute to resolve. I have great sympathy with a view as to the
undesirability of deciding an important issue in a dispute which no longer
exists for the purpose of determining who pays the costs of litigation which
has otherwise come to an end. In this case, however, there are now considerable
costs incurred on both sides and, with regret, I cannot see how the court can
bar the parties from obtaining a decision as to who should pay those costs. The
issue of costs alone may keep litigation alive: see Ainsbury v Millington
[1987] 1 WLR 379. The court is not in a position to assess the correct costs
order without an evaluation of the prospects of success had the application for
judicial review been heard and determined. Consequently, Popplewell J had the
jurisdiction to hear the matter of costs and, in doing so, to decide the issue
which otherwise would not have been tried. If he was entitled to hear it, this
court cannot refuse to hear a dissatisfied litigant
that the appellants have the right to be heard in this court.
The second
question is whether the judge was right to find that there was no breach of
natural justice in the composition of the planning committee which included
Councillor Hunter. Should Councillor Hunter have debarred himself from taking
part in the consideration of the planning applications made by the appellants
and, since he did not debar himself, does his participation in those planning
applications cast doubt upon their fairness that the decisions should be set
aside?
Councillor
Hunter was a local builder and chairman of the parish council which opposed the
development proposed by the appellants. He attended all the meetings and voted
against all the applications made by the appellants. No point adverse to
Councillor Hunter was taken in connection with his chairmanship of the parish
council. In my view, it was reasonable that he should put forward the view of
the parish council which elected him as chairman in his other elected capacity
of borough councillor. It was suggested that he was in breach of the borough
council’s standing orders which repeat section 94 of the Local Government Act
1972. But there was no evidence of any actual pecuniary interest, and the
suggestion that he might have an indirect pecuniary interest is, in my view,
too remote.
The main
objection is to his occupation as a builder. There was no evidence of actual
bias but it was said that he had an indirect pecuniary interest in the success
or otherwise of a competitor and, consequently, there was a breach of the
principle of natural justice; that no man is to be a judge in his own cause and
a person is to be disqualified from deciding any matter in which he may be or
may be seen to be biased.
Professor Wade
in his work on Administrative Law (6th ed, 1988) referred at p 483 to
two differently formulated tests for disqualifying bias, the ‘real likelihood’
formula, or the appearance of bias if it might reasonably be thought that he
ought not to act because of some personal interest.
The argument
before us has been limited to the appearance of bias and the general
proposition that a builder ought not to sit on a planning committee hearing the
application of a rival builder carrying on business in the same area.
In my view,
that proposition is too wide. There is no doubt but that local government is
vulnerable to allegations of corruption and impropriety of its elected members.
Cases of corruption come before the criminal courts from time to time. All
councillors elected to serve on local councils have to be scrupulous in their
duties, search their consciences and consider carefully the propriety of
attending meetings and taking part in decisions which may give rise to an
appearance of bias, even though their actions are above reproach. But if a
builder is not to sit on a planning committee when planning applications are
made for development by a rival builder, in effect he is to be debarred from
sitting on the planning committee at all. Any planning application is likely to
involve builders and he would have to debar himself from an important area of
the planning committee’s work. I do not see how a line could be drawn between
some planning applications and others. All
affairs and even a major builder with worldwide ramifications is, for the
purpose of a planning application, a local builder. Equally, can a surveyor, or
architect, sit on the planning committee since one or both may be involved with
other builders in projects in the area?
Is it too far-fetched to ask builders’ merchants and other suppliers to
debar themselves, or plumbers or electricians?
Within this simple formula as proposed is a wholesale requirement for
all those who know something about planning and building or ancillary services
within the area to absent themselves from a committee where their general
expertise might be useful. I recognise the danger of corruption or impropriety
in an area of local government where applicants stand to gain great rewards
from successful applications, but there is always the risk of pressure or
influence or personal interest which may not necessarily be restricted to
builders or surveyors or similar occupations. Although I accept that the
principle of natural justice requires reasonable suspicion in the minds of
fair-minded men to be allayed, the general proposition is, in my view,
unworkable in the width of its scope.
I have had the
opportunity of reading Dillon LJ’s judgment in draft and I would answer the
question hypothetically posed by Mr Hunter to his friends in the affirmative —
why not?
I agree with
the trial judge that there was no real likelihood of bias, nor would
right-minded people think so. I would hold that the appellants would not have
succeeded in their application for judicial review.
DILLON LJ: Two points arise on this appeal.
The first, a
point taken by the court, is whether the court should entertain at all an
appeal involving argument on an important question in this particular field of
law, when on the facts the question is entirely academic because: (a) the
appellants had been granted planning permission for the development of the land
in question before the hearing before Popplewell J took place; and (b)
Councillor Hunter lost his seat on Holderness Borough Council at the last
council elections.
The second
point is, of course, the substantive question which Popplewell J decided in
favour of the council and against the appellants, as a result of which he
ordered the appellants to pay the council’s costs of the proceedings.
First
point
It is
elementary that the courts sit to decide disputes between the parties before
them and not to pronounce on interesting academic questions of law where there
is no dispute to be resolved: see, for instance, Ainsbury v Millington
[1987] 1 WLR 379.
But even in Ainsbury
v Millington Lord Bridge of Harwich recognised at p 381 C-D that
‘litigation may sometimes be properly continued for the sole purpose of
resolving issues as to costs, when all other matters in dispute have been
resolved’.
Thus, in Meade
v Haringey London Borough Council [1979] 1 WLR 637 Lord Denning MR said
at p 645E:
The strike
had been called off. There was no longer any need for an order by the court.
But we proceeded to hear the case for two reasons: one, because the costs of
the legal proceedings would depend on whether the parents were justified or not
in making their applications; second, because it was of importance to all
concerned that the legal position should be ascertained.
So, in Westminster
City Council v Croyalgrange Ltd [1986] 1 WLR 674 Lord Bridge of
Harwich said, at p 678E, that since the issue of costs remained at large, it
could not be said that there was no lis sufficient to keep the appeal
alive.
It follows, in
my judgment, that Popplewell J had jurisdiction to entertain these proceedings
and to decide the substantive question in order to decide the liability for
costs. In fact the judge did not in terms exercise any discretion; he simply
accepted the invitation of both parties to decide an issue of costs on the
merits of the whole case. We were told, however, that the appellants put their
own costs in relation to these proceedings at £ 15,000 for the period to just
before the hearing before Popplewell J, a further £ 10,000 for the hearing and
a further £ 10,000 for the present appeal. These figures are, to me, horrifyingly
large, and of course they have not been itemised to us or submitted to
taxation. But if the appellants’ costs were anything like as high as they
claim, it would have been an injustice to them if the judge had refused to hear
the case because it only concerned costs.
If, therefore,
the judge was both entitled and right to hear the case in order to decide the
liability for costs, it is the more difficult for this court to refuse to hear
an appeal, by whichever side, from the judge’s decision when the stakes are now
much higher and leave to appeal, if needed, has been granted.
Accordingly,
this court should, in my judgment, entertain the appeal and decide the
substantive question.
I would add
that there may be cases where the substantive question raised in proceedings
becomes academic at a very early stage, when the costs incurred by the
plaintiff are small. It may then be felt to be unreasonable for the plaintiff
to incur the expense and delay of going to a full trial on that academic
question, in order to recover the costs. In such a case the court may have
jurisdiction to refuse to try the case. But on that I do not express any view
either way since it is not the present case.
Substantive
question
The complaint
is that Councillor Hunter, who was a builder, sat on the planning committee on
the respondent council, of which he was a member, when the planning committee
rejected several successive applications by the appellants, who are also
builders, for detailed planning permission for the residential development of a
sensitive site in the conservation area of the village of Patrington for which
outline planning permission has already been granted. Councillor Hunter spoke
and voted against each of these applications.
Councillor
Hunter was also the chairman of the Patrington Parish
representations to the district council. The representations had, as is not
uncommonly the case, been against the granting of the appellants’ planning
applications. But since consultation with the relevant parish council is part
of the democratic process which precedes the consideration of a planning
application by the district council as local planning authority. I do not find
it per se objectionable that a district councillor who is a member of
that parish council, but to whom no other objection is made, sits on the
planning committee of the district council which considers the planning
application which the parish council has opposed.
It is
submitted for the appellants that Councillor Hunter’s conduct infringed section
94 of the Local Government Act 1972 and this council’s standing orders, which
repeat the wording of section 94. But, in my judgment, it is too far-fetched to
suggest that Councillor Hunter had a pecuniary interest, direct or indirect, in
the outcome of the appellants’ planning applications in respect of this site.
But it is
common ground that, quite apart from section 94, a planning committee deciding
on a planning application must abide by the requirements of natural justice. It
is exercising a discretion which is of the nature of a judicial discretion — R
v Hendon Rural District Council, ex parte Chorley [1933] 2 KB 696. One
aspect of natural justice is that justice should be seen to be done, and that
has developed into the concept that a person should not sit in a judicial or
quasi-judicial capacity if his sitting would give rise, as it has been
variously put, to a reasonable suspicion in the minds of fair-minded men or to
a real likelihood of bias. To my mind, for a builder to sit as a member of the
planning committee considering an application for planning permission for a
substantial residential development put forward by another builder or developer
would inevitably reasonably give rise to: (a) a belief in fair-minded men who
were opposed to the proposed development that the builder on the planning
committee would see that his colleague or the developer got what they wanted;
or (b) a belief in the applicant builder or developer that the builder on the
council would try to do down a rival or place difficulties in his way. To apply
the test of bias suggested by Lord Denning MR in Metropolitan Properties Co
(FGC) Ltd v Lannon [1969] 1 QB 577 at p 600B, if Mr Hunter has asked
any of his friends whether he should sit on these planning applications, the
answer would have been that he should not.
The dangers of
corruption in local government are great, particularly in the field of
planning. It is important to underline the principle that justice should be
seen to be done. Councillor Hunter may, indeed, have been honest and in no way
actually biased, but the appearances are against him, because of the nature of
his job.
I would allow
this appeal.
Appeal
dismissed with costs; application for leave to appeal to the House of Lords
refused.
