Nicole Fairey, R (on the application of) v East Riding of Yorkshire Council

Where a judicial review claim is resolved by an agreed final order at the permission stage, the order should record that permission is granted. The arguability threshold and discretionary bars are ordinarily satisfied when the court accepts the agreed substantive remedy as appropriate. The £770 continuation fee is not necessarily payable where permission and the final order are granted together at the permission stage, bringing the claim immediately to an end. The court may instead require the £108 consent-order fee. That fee determination is case-specific and does not finally resolve the wider meaning of the applicable fees regime.

The claimant challenged the Council’s decisions granting planning permission and listed building consent for alterations, refurbishment and conversion works at Listed Coach House, Stable Granary Range and Screen Wall, the Hall, Whitgift.

The parties agreed that the decisions should be quashed and remitted for reconsideration because the officer reports did not clearly address whether the development would cause substantial harm to the listed buildings. The court was asked to determine the agreed order on the papers, including whether permission was required and which court fee was payable.

1. Agreed substantive order. Permission was granted, the claim was allowed, and the two decisions dated 30 September 2022 were quashed and remitted to the Council for reconsideration. The Council’s concession that it had failed clearly to grapple with whether the development would cause substantial harm provided an appropriate basis for the order.
2. Permission. A final judicial review remedy should not be ordered without recording a simultaneous grant of permission. Section 31(3) of the Senior Courts Act 1981 requires leave, now described as permission, before an application for judicial review is made. Where the court is satisfied that an agreed final remedy is appropriate, the arguability threshold and the absence of discretionary bars are inherent in that conclusion.
3. Fees. The £108 consent-order fee was required. The £770 fee described in the Fees Order and the Administrative Court Listing Policy as a continuation fee was not required in this case. There was a substantial distinction between a case proceeding after permission for substantive preparation or hearing and an agreed final order made by the permission-stage judge at the same time as permission, thereby bringing the claim to an end.
4. The conclusion concerning the £770 fee was a case-specific exercise of judgment and discretion. The court had not heard contested argument or conducted detailed legal research, and acknowledged that the wider position might require clarification elsewhere.