Mount Cook Land Ltd & Anor v Westminster City Council

A planning authority will normally assess a planning application on its own merits. Where the proposal accords with policy and causes no planning harm, the comparative advantages of an unsubmitted alternative scheme will usually be irrelevant. Only exceptional circumstances can make such an alternative material, and it must have at least a likelihood or real possibility of being implemented in the foreseeable future.

Permission for operational development is not to be refused merely because it may make a future application for a separate change of use harder to resist. At the judicial-review permission stage, a successful defendant will generally recover the cost of a required acknowledgment of service, but not the costs of attending an oral renewal hearing unless exceptional circumstances justify departure from that general rule.

The appellants, freeholder interests in a building in Oxford Street, sought judicial review of Westminster City Council’s grant of planning permission to the long leaseholder for minor external alterations. They contended that the Council should have considered their alternative proposals for improvements to Market Place and should have refused the operational development because it could facilitate a later non-conforming change of use of upper floors.

Moses J refused permission to apply for judicial review and ordered the appellants to pay the Council’s costs. The Court of Appeal granted permission to appeal and to bring the judicial-review claim, retained the claim, and determined its merits. It also considered the proper costs approach at an oral renewal hearing under CPR Part 54.

1. The appeal and the judicial-review claim were dismissed. Auld LJ gave the Court’s reasons, with which Clarke and Jonathan Parker LJJ agreed.
2. Under sections 54A and 70(2) of the Town and Country Planning Act 1990, a planning authority ordinarily considers whether the application before it causes planning harm. The relative attractions of an alternative use or scheme are normally irrelevant where the proposed development complies with policy and is otherwise unobjectionable. An alternative scheme not under concurrent consideration will be material only exceptionally, and only if it has a likelihood or real possibility of occurring in the foreseeable future. The appellants’ inchoate proposals depended upon the leaseholder’s consent and had no realistic prospect of implementation. They were therefore immaterial, or of negligible weight.
3. The Council was also entitled to consider the operational development on its own merits. The proposed external works neither prevented the Council from deciding a later change-of-use application in accordance with policy nor prevented enforcement against any unauthorised use. The authorities concerning internal alterations integral to a present unauthorised use were distinguishable.
4. On costs, the Court adopted the limited effect of R (on the application of Leach) v Commissioner for Local Administration [2001] EWHC Admin 445. A successful defendant who files the acknowledgment of service required by CPR 54.8 should generally recover that cost. However, paragraphs 8.5 and 8.6 of the Judicial Review Practice Direction mean that a defendant who voluntarily attends and successfully resists an oral permission hearing should not generally recover attendance and preparation costs. Departure requires exceptional circumstances, which may include a hopeless claim, persistence after its defects are apparent, abuse for collateral ends, or an effectively full substantive hearing at the permission stage.
5. Moses J was entitled to find exceptional circumstances. The claim was hopeless, was used to exert commercial pressure, and had received the practical benefit of a full hearing. His costs order therefore stood. Auld LJ added that a claimant’s collateral motive would only exceptionally justify refusing substantive public-law relief, such as where it amounted to an abuse of process.

• Court of Appeal (Civil Division): Granted permission to appeal and to bring the judicial-review claim, retained the claim, and dismissed both the appeal and the claim: [2003] EWCA Civ 1346.
• Administrative Court (Moses J): Refused permission to apply for judicial review of the planning permission and ordered the appellants to pay the Council’s costs. No citation is stated in the judgment.