Sammakia & Ors, R (on the application of) v Royal Borough Of Kensington & Chelsea

Permission to appeal in a planning judicial review should be refused where the proposed grounds are arguable but lack a real prospect of success. The court must assess the planning decision overall, recognising that planning policies are generally broad and that detailed criticisms of policy reasoning may not justify quashing permission. Public interest in challenging public authority decisions does not remove the need for that merits threshold.

Costs incurred before permission to move for judicial review may raise an issue of general importance. So may the application of the indemnity principle where a public authority’s internal solicitor charging rates differ from the rates allowed by the court.

Three residents sought permission to appeal against Moses J’s refusal of permission to challenge a planning permission granted by the Royal Borough of Kensington and Chelsea. The challenge alleged that the Council had misunderstood local and national planning policies when approving unusual underground off-site parking beneath an existing development.

The applicants also challenged the costs order. That order included costs incurred by the Council before permission to move for judicial review, although it excluded the costs of the permission hearing, and allowed city-solicitor rates despite an issue concerning the authority’s internal charging arrangements.

The Court of Appeal considered whether the substantive appeal had a real prospect of success and whether the costs issues warranted permission to appeal.

1. Substantive challenge. Permission to appeal against the refusal of permission to seek judicial review was refused. The criticisms of the Council’s reasoning were arguable, but they did not have a real prospect of persuading the full court to quash the planning permission.

2. Planning policies are generally broad. The relevant local and national policies had been placed before the planning committee, which was familiar with the parking problems addressed by them. The committee was entitled to assess the unusual subterranean parking proposal, including the restriction of parking to local residents, and to regard the allegedly similar schemes as sufficiently comparable for its purposes.

3. The court must take an overall view of the prospects of success. The wider public interest involved in challenging public authority decisions is relevant, but it does not displace the requirement that the proposed appeal have a real prospect of success.

4. Costs challenge. Permission to appeal the costs order was granted. Two issues had wider significance: whether costs incurred by the successful party before permission to move for judicial review could be awarded, and whether allowing city-solicitor rates breached the indemnity principle where the authority’s internal charging rate might be lower.

5. The costs appeal was to be heard by a court of three judges. The judge indicated that it should take about an hour, while noting that the parties might consider the amount at stake disproportionate to the further costs of litigation.

• Administrative Court: Moses J refused permission to challenge the planning permission and made a costs order, referred to as 2002 EWHC 435.
• Court of Appeal (Civil Division): Schiemann LJ refused permission to appeal on the substantive planning issue, but granted permission to appeal the costs order.