Wiltshire Council v Secretary of State for Communities and Local Government & Ors

After judgment has been handed down, a court may give further consideration to the appropriate remedy where the parties raise and address a distinct proposal for a declaration in lieu of a quashing order. An earlier view that the court could not decline to quash does not prevent that reconsideration. The issue may be entertained even though it was not argued at the substantive hearing, provided doing so falls within the court’s discretion and causes no unfairness. In exceptional circumstances, declaratory relief may be appropriate despite an earlier conclusion concerning quashing. Permission to appeal should be refused where the proposed appeal has no real prospect of success and no compelling reason warrants a hearing.

Wiltshire Council sought permission to appeal against the supplementary judgment of Patterson J, reported at [2015] EWHC 1459 (Admin). The supplementary judgment granted a declaration that the Secretary of State’s planning decision was unlawful instead of quashing it. In the earlier judgment, reported at [2015] EWHC 1261 (Admin), the judge had found that a material report had not been taken into account and had indicated that she could not exercise her discretion not to quash the decision.

The Council argued that the judge had acted unlawfully by reconsidering the remedy after judgment and by contradicting her earlier conclusion. The central issue was whether a declaration in lieu of a quashing order could properly be considered on post-judgment submissions.

1. Permission refused. The renewed application had no real prospect of success and disclosed no compelling reason for the Court of Appeal to hear an appeal.
2. Although Patterson J had expressed a view in her main judgment about being unable to exercise her discretion not to quash, she was entitled to give the remedy issue further or fresh consideration after receiving post-judgment submissions. The proposal for a specific declaration in lieu of a quashing order was a distinct suggestion. It was not inherent in the developers’ earlier contention that the judge had exercised her discretion not to quash.
3. The issue had been raised expressly and addressed by all parties. It was open to the judge to entertain it, even though she might instead have considered it too late. Her decision to do so caused no unfairness.
4. The judge’s hands were not tied by her earlier statement. It was within the reasonable bounds of her discretion to conclude that declaratory relief was appropriate in the exceptional circumstances identified, taking account of the unlawfulness, the Council’s position, the public interest and the disadvantage suffered by the developers through no fault of their own.
5. There was therefore no good reason to entertain an appeal against the order, and the application was refused.

• Court of Appeal: Laws LJ refused permission on the papers. Richards LJ, on renewal, agreed and refused the application.
• High Court, Planning Court: Patterson J found the planning decision unlawful in [2015] EWHC 1261 (Admin). In the supplementary judgment, [2015] EWHC 1459 (Admin), she granted a declaration instead of a quashing order.