Ewing & Anor, R (on the application of) v Office of the Deputy Prime Minister

Permission to seek judicial review of planning decisions may be refused where the challenge is plainly out of time, legally unarguable, or directed at a discretionary policy which does not unlawfully fetter the decision-maker. In assessing demolition within a conservation area, the authority may consider the effect of the proposed development as a whole. It need not isolate a positively contributing building from the wider scheme if the overall proposal preserves or enhances the conservation area. A request for call-in must be considered on the correct factual basis. Where it was made on the mistaken assumption that permission had been granted, the appropriate course may be to make a fresh application rather than continue defective proceedings. A vexatious litigant’s application under section 42(3) of the Supreme Court Act 1981 and the related judicial-review permission application should ordinarily be dealt with together, with corresponding costs consequences.

Mr Ewing, a vexatious litigant, and Mr Hammerton sought permission to challenge planning decisions concerning proposed developments in Weston-super-Mare. The challenges concerned planning permissions and conservation area consents granted in 2003, a November 2004 resolution to grant further permission, and the Secretary of State’s response to requests for revocation and call-in.

The 2003 decisions were challenged after substantial delay. The later resolution was challenged one day outside the time limit. The central issues were whether the local authority had misapplied PPG 15 in considering demolition of Severn Croft, whether the revocation policy unlawfully fettered the Secretary of State’s discretion, and what consequence followed from the fact that the call-in request had been made on the mistaken assumption that the November resolution had resulted in a grant of planning permission.

1. Permission and delay. The challenges to the 2003 planning decisions were plainly out of time. The pursuit of revocation, begun only in December 2004, could not justify extending time. Permission to seek judicial review and permission under section 42(3) of the Supreme Court Act 1981 were therefore refused in respect of those decisions (paras [11]-[13]).
2. Conservation-area assessment. The council had accepted that Severn Croft made a positive contribution to the conservation area. It had nevertheless considered whether the building could be retained, the relevant policy criteria, the condition and repair implications, and the effect of the proposal as a whole. It was legally permissible to conclude that an overall redevelopment would preserve or enhance the conservation area, even though it required demolition of a building which was itself positively contributing. The suggested requirement to assess Severn Croft in isolation was legally wrong (paras [15]-[23]).
3. Revocation. The Secretary of State’s high-threshold policy did not amount to an unlawful fetter. The individual circumstances had been considered, and the fact that another view could be taken under PPG 15 did not require revocation in the public interest (paras [24]-[27]).
4. Call-in. The request relating to the November 2004 resolution had been considered on a false factual basis because no planning permission had yet been granted. The appropriate course was not to keep the proceedings on foot, but to permit a proper call-in application explaining why the case raised more than local concerns. The Secretary of State could then respond on the correct basis, with steps available to prevent permission being issued before that consideration was complete (paras [28]-[31]).
5. Costs. The applications were refused. On the application of the first interested party, the court followed the costs principle in Mount Cooke. Because the claim form had been served and the two permission applications had to be dealt with together, the costs consequences were equivalent to an ordinary judicial-review permission application. Mr Ewing and Mr Hammerton were jointly and severally ordered to pay the assessed costs of the acknowledgement of service. Mr Ewing was granted permission under section 42 to seek permission to appeal against the costs order concerning him alone.

First-instance decision. The judgment states that permission to seek judicial review and permission under section 42(3) of the Supreme Court Act 1981 were refused.