Stamford Chamber of Trade & Commerce and Anor, R (on the application of) v The First Secretary of State for Communities & Local Government & Anor

In a moot public-law appeal, the court may decline to determine the substantive merits where the proposed relief has no practical utility and would serve only an advisory purpose. Advisory opinions remain exceptional and require particular justification. The court should consider the effective use of judicial resources, the overriding objective, the statutory framework governing any future decision, and the fact-sensitive nature of the issue. A judgment concerning an expired statutory regime may neither bind future decision-makers nor assist disputes arising under different legislation or on different facts.

The appellants challenged the failure of South Kesteven District Council to consult on, or request, the saving of Policy T1, a local-plan policy concerning a proposed Stamford–Ryhall road link. They also challenged the Secretary of State’s direction under paragraph 13 of Schedule 8 to the Planning and Compulsory Purchase Act 2004, which did not save the policy. The appellants relied principally on a legitimate expectation of consultation.

The Administrative Court, on 7 April 2009, dismissed the application for judicial review. Before the appeal was heard, a Core Strategy Examination Inspector concluded that safeguarding a relief-road route was not justified. The appellants accepted that there was no realistic prospect of securing the policy’s preservation and discontinued the claim against the Secretary of State. The central issue became whether the Court of Appeal should nevertheless determine the substantive legitimate-expectation argument for its possible future utility.

The Court of Appeal unanimously dismissed the appeal. Laws LJ gave the reasons, with which Wilson LJ and Mummery LJ agreed.

1. An advisory opinion in a public-law case may sometimes be appropriate, but it is an exceptional course requiring particular justification. The court must deploy its resources effectively and have regard to the overriding objective in Part 1 of the Civil Procedure Rules 1998 (para [13](1)).
2. The supervening events had removed any practical utility from the appeal. The appellants had accepted that there was no realistic prospect of persuading the Secretary of State to save Policy T1 and had discontinued the claim against him. Any decision would therefore be advisory only (paras [10]–[12]).
3. A favourable judgment would not bind the Secretary of State in future planning deliberations. The statutory effect of paragraph 1(3) of Schedule 8 to the Planning and Compulsory Purchase Act 2004 had expired by the passage of time. Future decisions would necessarily be taken under other statutory provisions, which could materially affect any legitimate-expectation issue. The court relied on the principle stated in Inland Revenue ex parte MFK Underwriting [1990] 1 WLR 1545 at paragraph [114] (para [13](2)).
4. Legitimate expectation is highly fact-sensitive. A ruling on statements made in particular documents during the transition from the old local plan to the new development-plan system would be historic and might not govern different facts. It could also generate further litigation about the judgment’s scope (para [13](3)).

The court expressly declined to express a view on the substantive merits. The appeal was dismissed on the ground that the court should not enter into them.

1. Court of Appeal (Civil Division): Permission to appeal was granted by Keene LJ on 15 July 2009. The appeal was dismissed on 23 June 2010 because the issues had become moot and lacked practical utility.
2. Administrative Court: Mr Rabinder Singh QC, sitting as a deputy High Court judge, dismissed the application for judicial review on 7 April 2009.