Howard & Anor v Wigan Council & Anor

On an application for permission to appeal, fresh evidence must be assessed against the evidence as a whole and the findings reached after oral evidence and cross-examination. Later site observations and photographs will not justify reopening findings about earlier works where they do not address the precise historical events, lack relevant expert support, and arrive too late for a proper response. A challenge to a costs order will also fail where the judge merely adjourned costs issues to allow proper consideration of privilege and insurance matters. Three applications for permission to appeal were therefore refused.

Wigan Council granted Morris Homes Ltd planning permission for 39 dwellings on a former chemical works site. Residents challenged the permission, alleging defects in the environmental assessment process and dishonesty concerning the excavation and sampling of trial pits.

Supperstone J heard oral evidence and cross-examination, rejected the allegations, dismissed the judicial review, made a costs order, and later refused an application to admit further evidence and reopen the proceedings. The applicants also challenged the costs decision. Sullivan LJ refused permission to appeal on paper. The central issues before Burnett LJ were whether the later site observations and photographs could undermine the findings at first instance, and whether the costs order involved procedural impropriety.

1. Permission and fresh evidence. All three applications for permission to appeal were refused. The original findings concerning the trial pits had been reached after oral evidence, cross-examination and consideration of contemporaneous records.
2. Later observations of concrete and photographs had to be assessed against the evidence as a whole. The applicants had no relevant expertise and had obtained no informed professional opinion supporting their interpretation. The material did not address the precise circumstances of what had occurred on the historical dates when the pits were said to have been dug. Long-distance photographs did not establish that the witnesses had inaccurately or dishonestly described those events.
3. The proposed evidence was produced late, giving the interested party little opportunity to respond. Applying the principles associated with Ladd v Marshall, Burnett LJ was very far from satisfied that the evidence would pass muster if an application to adduce it on the appeal had been made. It provided no real basis for disturbing the first-instance findings or reopening the judicial review.
4. Costs. The challenge to the costs order disclosed no impropriety. The hearing had concerned both the wasted-costs application and the costs consequences of the earlier proceedings. The judge was entitled to adjourn the matter to allow the solicitor to consider privilege issues with the clients and to obtain the insurers’ views. The wasted-costs application remained to be determined in due course under the established principles associated with Ridehalgh v Horsefield.
5. Burnett LJ concluded that Sullivan LJ had been right to reject the applications.

• Court of Appeal (Civil Division): Sullivan LJ refused permission to appeal on paper. On renewal, Burnett LJ refused all three applications and upheld that decision.
• High Court, Planning Court: Supperstone J dismissed the judicial review, made a costs order, and refused to admit further evidence or reopen the proceedings. He also discharged an interim injunction.