Case No: C1/2012/2524 - 15 November 2012 - Judgment - 1738

7/30/2019 Case No: C1/2012/2524 - 15 November 2012 - Judgment - 1738

1/13

Neutral Citation Number: [2012] EWCA Civ 1738

Case No: C1/2012/2524

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

MR JUSTICE WILKIE

[2012] EWHC 2653 (Admin)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 21/12/2012

Before :

LORD JUSTICE PILL

LORD JUSTICE ETHERTON

and

SIR DAVID KEENE

- - - - - - - - - - - - - - - - - - - - -

Between :

The Queen

on the application of

Russell Gray

as representative claimant on behalf of Bermondsey

Village Action Group (BVAG)

Applicant

- and -

London Borough of Southwark

Mayor of London

Secretary of State For Communities And Local

GovernmentHistoric Buildings and Monuments Commission for

England (English Heritage)

Respondents

- and -

Network Rail

Department for Transport

Interested

Parties

- - - - - - - - - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - - - - -

Mr Stephen Whale (instructed by Public Access) for the Applicant

Mr Daniel Kolinsky (instructed by London Borough of Southwark) for the First

RespondentMr Douglas Edwards QC (instructed by TFL Legal) for the Second Respondent

Mr Tim Mould QC (instructed by Bircham Dyson Bell LLP) for the First Interested Party

Hearing date : 15 November 2012

- - - - - - - - - - - - - - - - - - - - -

JudgmentLord Justice Pill :

1. This is an appeal against a decision of Wilkie J dated 20 September 2012 whereby he

refused an application for permission to apply for judicial review by Mr Russell Gray(the applicant), as representative claimant on behalf of Bermondsey Village Action

Group (BVAG). The applicant seeks to quash decisions of the London Borough of

Southwark (the Council) whereby the Council on 29 March 2012 granted


2/13

permission for substantial redevelopment of London Bridge Station and the area

surrounding it. The Councils grant, at the same time, of listed building consent and

conservation area consent is also sought to be challenged.

2. It is also sought to quash a decision of the Mayor of London (the Mayor) not to

direct refusal of permission or to act as planning authority in respect of the

applications for planning permission. A declaration is sought that his failure either to

direct refusal of planning permission or to act himself as planning authority was

unlawful. Before the judge, declarations in relation to the alleged failure of theSecretary of State for Communities and Local Government (the Secretary of State)

and English Heritage, and an order against the Secretary of State were sought. Those

applications are not pursued in the present application.

3. Collins J refused permission to apply on 9 July 2012, on a consideration of the papers.

On a renewed application to Wilkie J in the Administrative Court, application to

amend the grounds for relief was granted but, in each case, permission to apply for

judicial review was refused.

4. The applicant has exercised his right to renew the application in this court. On a

consideration of the papers, I directed that the application be heard orally today by athree judge court with the appeal to follow if the application was granted. I also heard

an oral application by the applicant for further disclosure of documents by the

proposed respondents. In limited respects only, that application was granted and

some further material has been disclosed.

Narrative

5. Network Rail have embarked on a major programme of upgrading the rail facility

known as Thameslink and the stations on its route. These include London Bridge

Station, which opened in 1836. The basic structure is Victorian and the train shed and

associated railway viaduct arches are listed Grade II. Adjacent to the station inTooley Street are the South Eastern Railway Offices (SERO), within a conservation

area and described as an important landmark building within the conservation area.

6. Network Rail gave notice that it was applying to the Council:

For planning permission for Provision of a new Station layout

at London Bridge, including construction of new Station

Concourse, together with the demolition of existing arches; the

demolition of Listed train shed and part of the wall on St

Thomas Street; and the demolition of 84 Tooley Street and the

construction of new replacement facades on Tooley Street andSt Thomas Street; landscaping and other works associated with

the station.

7. Listed building consent was also required for the demolition of the listed train shed

and main roof structure and supporting walls, works associated with the repair,

refurbishment and re-use of the railway arches on St Thomas Street. Conservation

area consent was required for the demolition of the SERO office building.

8. The applicant has lived or worked in the area around the station, Bermondsey Village,for 25 years. He is the co-ordinator of BVAG which aims to influence policies

relating to the preservation of the character of the area. There has been no challenge

to his standing to make the present application.


3/13

9. Network Rail described the improvements to the station as the final major component

of its Thameslink Programme. Track and platform re-alignments are claimed to be

required and also major reconstruction of the station including a new station

concourse. An application for planning permission was submitted on 27 June 2011

supported by plans, statements and an Environmental Statement pursuant to the Town

and Country Planning (Environmental Impact Assessment) (England and Wales)

Regulations 1999 (SI 1999 No.293). On 14 July 2011, the Mayor was notified of the

planning application in accordance with the requirements of the Town and Country

Planning (Mayor of London) Order 2008 (SI 2008 No. 580) (the 2008 Order), as

being a planning application of potential strategic importance.

10. On 1 March 2012, the Deputy Mayor notified the Council that the Mayor was content

to allow the Council to determine the application itself and on 29 March 2012, the

Council granted the required planning permission, and listed building and

conservation area consents. Network Rail entered into agreements under section 106

of the Town and Country Planning Act 1990 (the 1990 Act) with both the Council

and Transport for London.

11. The Councils Head of Development Management (the Planning Officer) submitted

a very detailed report to the Planning Committee, together with an addendum, and the

Committee resolved to grant planning permission, listed building consent and

conservation area consents on 20 December 2011. Consent was given for the

demolition of the SERO building in connection with the Thameslink Programme and

the associated redevelopment of London Bridge Station. Decision notices were

issued on 29 March 2012 following the decision of the Mayor not to intervene.

12. Permission for the development, along with listed building consent and conservation

area consent, had been granted in 2003 but that proposal involved only partialdemolition of the listed structures and the SERO. The Network Rail (Thameslink

2000) Order 2006 (the 2006 Order) made under the Transport and Works Act 1992

(the 1992 Act) had authorised certain works and that gives rise to one of the

grounds of appeal. The consents were renewed in 2008 but the present scheme is a

different one and fresh applications were required.

13. The major operational change proposed was that instead of there being nine

terminating platforms and six through platforms at the station there would be six

terminating platforms and nine through platforms. A comprehensive remodelling of

the station was also proposed.

Grounds of appeal

Ground 1

14. The proposed appeal is based on four discrete grounds. The first is that the

environmental statement provided by Network Rail was deficient and unlawful in

failing to provide information in relation to alternative schemes considered.

15. Council Directive 95/337/EEC of 27 June 1985 is concerned with the assessment of

the effects of certain public and private projects on the environment. Under article 5,


4/13

a developer is required to supply the information specified at Annex IV. That

includes, at paragraph 2, a requirement to supply an outline of the main alternatives

studied by the developer and an indication of the main reasons for this choice, taking

into account the environmental effects. That requirement is given effect in the Town

& Country Planning (Environmental Impact Assessment) (England and Wales)

Regulations 1999 at Schedule 2, Part II, paragraph 4.

16. Network Rail submitted, in October 2010, a lengthy Environmental AssessmentScoping Report and in June 2011 an Environmental Statement. Under the heading

Cultural Heritage and Townscape the impact of the proposal and the significance of

its environmental effect were considered. Part II of the submission, entitled Project

Information, included a section heading Planning Policies and Alternatives. It is

stated that in this instance the consideration of alternatives and the application of

planning policy are inextricably linked because of the national policy objective of

improving public transport. It is stated that Government policy identifies a clear

need to promote sustainable development and transport including seeking to promote

transport accessibility and establish high quality, reliable routes, with good

interchanges, and maximise the potential usage of public transport.

17. Under the heading Alternative arrangements on site it is stated:

5.5 Network Rail have been constantly reviewing the

operational requirements at London Bridge and it was

apparent that the previous Masterplan scheme would

not provide for the capacity requirements and

projections required.

5.6 The design of the Station has been re-assessed and

Network Rail has spent some time preparing anoperationally led design for London Bridge Station.

5.7 The scheme which Network Rail now wish to proceed

with is driven by a requirement to deliver a

significantly increased level of capacity and to future

proof the Station to 2076.

No Scheme Option

5.8 In the event that the development does not proceed, the

overriding policy objective to improve publictransport, specifically the Thameslink programme,

promote sustainable development and transport

(including minimising overall emissions) would not be

met.

In the following paragraphs, the importance of improvements to London Bridge

Station is stated. Paragraph 5.11 provides:

5.11 If there were to be no changes to London Bridge

Station other than the minor ones proposed as part ofthe Shard Development, the station would reach

unacceptable levels of congestion by 2018 and there

would be no capacity for any future passenger


5/13

growth.

18. Mr Whale, for the applicant, referred to the statement of Sullivan J in R (Blewett) v

Derbyshire CC[2004] Env. L.R. 569, at paragraph 41, endorsed by Lord Hoffmann in

R (Edwards) v Environment Agency [2008] UKHL 22, at paragraph 38:

In an imperfect world it is an unrealistic counsel of perfection

to expect that an applicants environmental statement willalways contain the full information about the environmental

impact of a project. The Regulations are not based upon such

an unrealistic expectation. They recognise that an

environmental statement may well be deficient, and make

provision through the publicity and consultation processes for

any deficiencies to be identified so that the resulting

environmental information provides the local planning

authority with as full a picture as possible. There will be cases

where the document purporting to be an environmental

statement is so deficient that it could not reasonably be

described as an environmental statement as defined by theRegulations (Tew was an example of such a case), but they are

likely to be few and far between.

19. Mr Whale submitted that the environmental statement is so deficient that it could not

reasonably be described as such. Paragraphs 5.5 to 5.7 were brief in the extreme and

there was no outline of any of the main alternatives studied. The developers were

expected to provide as full a picture as possible and the obligation was not met.

20. Complaint is also made of the lack of reference to environmental effects but,considering the documents as a whole, I cannot accept that submission. In any event,

that is a different point. A failure to take environmental considerations into account

in decision making is a different complaint from the failure to refer to alternatives. In

any event, not only Network Rails documents but the lengthy report to the Planning

Committee by the Planning Officer gave every opportunity for the decision makers to

consider effects on heritage and the environment before making their decision.

21. Mr Whale rightly referred, in both his written and oral submissions, to the Network

Rail GRIP (guide to railway investments projects) reports of 2009 and 2010. They

support the view expressed by Mr Langley, for Network Rail, that the preservation ofheritage assets did not at that stage form part of the criteria. It is stated, at

paragraph 2.1 of the 2010 report, that the Thameslink programme is required to

provide a significant increase in railway capacity through Central London. It is

stated, at paragraph 2.2 that the objective of Grip 3 designed development of London

Bridge Station is to select a single option that meets requirements and is technically

feasible. Further to this, the design must meet the high level requirements set out by

the Department of Transport, who have set requirements for the Thameslink

programme as a whole . . . There is reference to a London Bridge Environmental

Mitigation Schedule but all options considered required removal of the listed roof

structure and the driving force was the required functionality criteria. The design

was operationally led.

22. It is clear that Network Rail were not unaware that the decision maker, the Council,


6/13

would balance their operational requirements with heritage and environmental

considerations. At 14.3 of the Design Development Overview of September 2010, it

is stated:

New applications for planning permission, listed building

consent and conservation area consent would be required. In

order to justify the loss of the listed train shed such applications

would need to demonstrate achievement of planning and

regeneration benefits equivalent to Masterplan. There is a highrisk that the current design will need to be amended to achieve

planning permission.

23. It is stated in section 6 of the 2010 report that do nothing and do minimum

options were developed but had not been presented in the document. They were not

proposed by the project as options that could meet the base line functionality. That

statement is followed by a setting out of what are described as mandatory criteria

with which options must comply . . . to warrant further consideration. These are

cost, station capacity and ability to achieve Thameslinks 2015 timetable.

24. Options which made unnecessary, or substantially minimised, the damage to heritage

were not seriously considered at that stage. It cannot be a surprise that the

environmental statement did not refer to such options and it would have been

somewhat duplicitous to do so. A scheme which met the applicants objections had

not seriously been considered. Network Rail faced the risk of their proposal being

rejected on environmental or heritage grounds but that is a different point and not put

as a ground of challenge. Given the comprehensiveness of the Planning Officers

report to the Planning Committee, I am not surprised that the ground is not being

advanced.

25. It cannot in my judgment seriously be argued that, in the circumstances of this case,

the environmental statement is so deficient for failure to consider alternatives that it

could not reasonably be described as an environmental statement.

Ground 2

26. The second ground of appeal turns on statutory construction. Under the 1992 Act, the

Secretary of State may, under section 1, make an order relating to, or in mattersancillary to, the construction or operation of a transport system, including a railway.

Pursuant to that power, the Secretary of State made the 2006 Order, Article 9 of

which is headed Further works at London Bridge. It states:

Network Rail may, at London Bridge in the London Borough

of Southwark, in the construction of Works Nos. 13 and 14 or

either of them and within the limits of deviation for those

works form, alter or extend platforms at Network Rails

London Bridge station with all necessary works and

convenience connected therewith, including the alteration of

the station footbridge, the train shed and the bus interchange.

A schedule of works is set out in Schedule 1 to the Order and the relevant work


7/13

concerned configuration of the railway lines in order to enable through-traffic through

London Bridge Station.

27. Section 12 of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the

Conservation Act 1990) provides for the reference of certain applications to the

Secretary of State. Subsection (3A) provides:

An application for listed building consent shall, without anydirection by the Secretary of State, be referred to the Secretary

of State instead of being dealt with by the local planning

authority in any case where the consent is required in

consequence of proposals included in an application for an

order under section 1 or 3 of the Transport and Works Act

1992.

28. The submission is that the listed building consent for demolition of the train shed was

required in consequence of proposals included in an application for an Order under

section 1 of the 1992 Act. The application for listed building consent should havebeen referred to the Secretary of State. The subsection cannot be construed as if it

reads in consequence only of proposals included in the earlier application. The

demolition of the train shed was required in consequence of proposals included in the

application for the Order.

29. Section 1 of the 1992 Act must be read with section 16. That provides, at subsection

(1):

(1) In section 90 of the Town and Country Planning Act 1990

(which gives power to deem planning permission to be grantedin certain cases where development is authorised by a

government department) after subsection (2) there shall be

inserted

(2A) On making an order under section 1 or 3 of the

Transport and Works Act 1992 which includes provision for

development, the Secretary of State may direct that planning

permission for that development shall be deemed to be

granted, subject to such conditions (if any) as may be

specified in the direction.

Thus there may be a deemed planning permission following an order under section 1

of the 1992 Act.

30. Mr Whale rightly distinguishes between an application for planning permission and

an application for listed building consent but the section does throw light on the effect

of section 12(3A) of the Conservation Act 1990. The requirement to refer is

consequential upon a specific deemed permission under the Order.

31. The judge found, at paragraph 28, that the relevant planning application is much

more extensive than Works 13 and 14 under the 2006 Order. The Judge accepted the

submission on behalf of Network Rail that the listed building consent was not

parasitic on something that had deemed planning permission. It was an integral part


8/13

of a much wider application for which planning approval was necessary and the listed

building issue was in consequence of the wider application.

32. The Judge stated, at paragraph 29:

The purpose of Section 12 (3A) is to save for the Secretary

of State's consideration alone the sensitive matter of listed

building consent parasitic upon limited works identified inan order for which planning permission is deemed to have

been given and thereby cutting out entirely the local

planning authority and that whole statutory scheme. Where

the local planning authority is properly involved, as it must

be, in considering planning permission for a much more

extensive scheme, albeit it may involve as part and parcel of

it some such works as are the subject of an order under the

Transport & Works Act 1992, it is plain and obvious, in my

judgment, that the listed building consents which are

required in respect of the whole scheme - not just or

necessarily in respect of the limited part which had beencovered by the deemed planning permission - should be

considered by the Local Planning Authority.

33. The judge held the applicants submission to be unarguable and I agree.

Ground 3

34. Under Ground 3, it is argued that the Planning Committee was misled as to theamount of additional retail space to be permitted in the development and, had they not

been misled, they might have reached a different conclusion. Further, had there been

more accurate information, there might have been further objections for the

Committee to consider. The Committee should also have been told of London

Dungeons proposed vacation of their premises close to the development. Network

Rail must have been aware of the likely move, which would free up further potential

retail space, and failed to inform the Committee.

35. London Dungeon is a visitor attraction located in Railway Arches underneath London

Bridge Station and described by Network Rail as a key station tenant. The premisesare not within the application site. Removal would release to Network Rail several

thousand square metres of floor space connecting the main proposed shopping mall

with Tooley Street.

36. The applicant has made substantial enquiries to challenge Network Rails figure for

existing retail space at 6,666 m, slightly modified in the course of discussion to 6,590

m.

37. The applicant has sought strenuously to challenge Network Rails figure for existing

retail space and has done so by reference to Valuation Office figures. Some of the

applicants submissions are not without force. Included within existing retail floor

space are premises (London Office Furniture Centre) which are used, probably on the


9/13

strength of existing use rights, as a warehouse or repository. There could be an issue

as to whether the premises are or could be used for retail. It is further claimed that

Network Rail have been inconsistent in including the current main thoroughfare as

retail floor space but failing to adopt that approach in relation to the proposed retail

area. Other points are taken in relation to the Arches, concourse and bus deck areas

and platform, the kiosks at Joiner Street and the premises of Fantastic Fried Chicken.

The general submission is made that Network Rail have down-played the extent of

proposed additional retail floor space so as not to reveal how strong is the commercial

motivation for the proposal.

38. Mr Whale relied on a statement of Judge LJ giving a supporting judgment in Oxton

Farms v Selby District Council (transcript 18 April 1997) a case in which planning

permission was not quashed. Judge LJ stated:

In my judgment an application for judicial review based on

criticisms on the planning officer's report will not normally

begin to merit consideration unless the overall effect of the

report significantly misleads the committee about material

matters which thereafter are left uncorrected at the meetingof the planning committee before the relevant decision is

taken.

39. It is most unusual for this court to entertain factual arguments about floor space on a

renewed application for permission to apply for judicial review but I have been

prepared at least to consider the written evidence, which is much in dispute, because

of further documents made available by Network Rail and the Council since the

earlier decision. Network Rail contend that the methodology by which the retail

figures were reached is defensible.

40. For Network Rail, Mr Mould QC took issue with the applicants figures for retail

space, referring to evidence submitted. The Committees attention was drawn to the

agreement that Western Passage to remain open. That was a part of the disputed

retail figure. Existing commercial users were listed in the Officers report. The

submission that the heritage destruction is driven by the commercial retail potential of

the site is denied.

41. For the Council, Mr Kolinsky referred to the Planning Officers report for the meeting

of 20 December 2011. The main issues were listed. These did not include the allegedincrease in retail space which had not been raised as an issue. It is accepted that the

report did refer, at paragraph 71, only to a slight increase from existing floor space.

There was an issue as to the amount of leisure floor space to be provided and that was

resolved, to the Councils satisfaction, by the allocation of an additional 500 m. At

paragraph 87, it was stated that the mix of uses provided within the development is

acceptable given the constraints of the new concourse.

42. While there is room for argument as to whether the proposed development provides

significantly increased retail floor space over existing, I do not consider it arguable

that, had the Committee had further information and argument, such increase wouldhave influenced their decision. There is no suggestion that planning policies for this

area involved limitations upon retail floor space and the evidence is to the contrary.

The London Bridge District Town Centre is an opportunity area and there is evidence


10/13

that the provision of new retail floor space was an acceptable, and indeed desirable,

land use in planning policy terms. The Planning Officers report, at paragraph 70,

stated that at London Bridge the provision of new shopping space will be supported.

There were issues for the Committee to consider, including heritage arguments raised

by the applicant, and others, but I cannot accept that arguments about existing retail

floor space, did or would have played a significant part in decision-making.

43. I see no merit in the London Dungeon submission. The premises are not within theapplication site. If a planning application is made in relation to them, there is no

reason to doubt that it will be considered on its merits.

Ground 4

44. Ground 4 is directed to the decision of the Mayor to allow the Council to determine

the case itself. Complaint is made that the Mayors decision was based on costs and

inconvenience to Network Rail and not to planning considerations. The Mayor

wrongly took into account cost considerations.

45. In a letter of 1 March 2012, signed by the Deputy Mayor, it is stated that the

environmental information made available has been taken into consideration in

formulating the decision.

46. In a planning report dated 24 August 2011, it was concluded, at paragraph 123 that:

On balance, the application does not comply with the London

Plan.

It was noted that changes, specified in the report, might lead to it becoming

compliant. The Mayors decision was taken following a further report available on 1

March 2012. Following detailed consideration of the issues, it was concluded:

The application for the redevelopment of the station is

supported as realising the benefits of the Thameslink proposals.

The heritage loss is regrettable but has been demonstrated as

necessary in order to deliver the public benefits arising from the

scheme in the context of PPS5 and the London Plan. The

application is consistent with the London Plan.

PPS5 states the requirement to demonstrate that the substantial harm to or loss of

significance is necessary in order to deliver substantial public benefits that outweigh

that harm or loss. (Policy HE 9.2(1))

47. Retention options had been considered. It was stated, at paragraph 62:

As such GLA Officers are satisfied that it is not unreasonable

to conclude the removal of the train shed wall as necessary inthe context of PPS5.


11/13

That conclusion is repeated at paragraph 65. At paragraph 67 it was stated that tests

in the London Plan were satisfied and that the approach is necessary to realise the

public benefits arising from the proposal.

48. In relation to the SERO, following a detailed analysis, the report had concluded, at

paragraph 57:

As such the harm arising to the heritage asset from theremoval of the building has been justified and is outweighed by

the public benefits arising through the delivery of a new station

concourse and realising the Thameslink programme and the

benefits associated with its delivery.

49. Reliance is placed by the applicant on a letter from the Chief Executive of Network

Rail to the Mayor, dated 27 February 2012. It was written in response to points raised

by the Mayor at a meeting on 16 February 2012 and the possible retention of 64-84

Tooley Street was raised. Mr Higgins, in his response, referred to the additional costs

and delay involved and the need for a wholesale redesign. Retention would involvepedestrian congestion, impede passenger circulation and create a highways safety

issue. Retention would negate specific design attributes, including architectural. That

letter was a reasoned response to reasonable enquiries made. It suggests neither

improper pressure on the Mayor nor his taking into account improper considerations.

50. Reliance is also placed on an email bearing the date 1 March 2012, the date of

decision, in which it is recorded that an officer of Network Rail had declined to accept

an amendment to the current scheme and had added that resubmitting the application

would result in an 18 month delay in obtaining planning permission. The true

position, it is submitted, was that cost was the main motivating factor in the Mayorsdecision.

51. For the Mayor, Mr Edwards QC referred to the statutory power of the Mayor under

section 2A of the 1990 Act and the Schedule to the 2008 Order. Ministerial Guidance

is that the power to issue a direction that he should assume jurisdiction should be used

as a matter of last resort (GLO Circular 1/2008 paragraphs 5.4 and 5.46). In taking

his decision, the Mayor, acting by the Deputy Mayor, had regard to the Stage 2

referral made by the Council on 17 February 2012. The decision was taken, it is

submitted, on the basis of a report which set out the issues with conspicuous

thoroughness. It was found that Network Rail had demonstrated that demolitionworks were necessary.

52. The decision not to intervene was based not on financial considerations but on

material planning considerations, including regard for pedestrian movements and the

provision of an evacuation area. The Mayor had to consider the proposal actually

before him and weigh the claimed public benefits with the loss of heritage involved.

The allegation that the decision had been taken for reasons other than those stated in

the reports is a serious one and is strongly denied.

53. I do not consider that the Mayor needed to rely onR v Westminster City Council Ex

parte Monahan [1999] QB 87 and I am doubtful whether the enabling principle

established in that case applies in the present case.


12/13

54. On analysis, I see no merit in this ground of appeal. The Mayors power to assume

jurisdiction over planning applications is not to be lightly or routinely exercised. The

decision not to intervene was taken on the basis of a comprehensive report and

evaluation. I see no basis for the suggestion that improper pressure was brought to

bear upon the Mayor or that undisclosed motives were involved in his decision. I

agree with the judges analysis.

Conclusion

55. Neither taken individually nor collectively do the grounds of appeal establish a real

prospect of success. It was for those reasons that, at the conclusion of the hearing, the

Court refused the application for permission to apply for judicial review and refused

permission to appeal.

Costs

56. The members of the court have considered the question of costs, oral submissions

having been made when the court stated that the application for judicial review was

refused. The Council and the Mayor against whom claims were brought, apply for

their costs. Network Rail does not. We conclude that costs should be awarded

against the applicant. Having been refused permission in the High Court, he has

pursued his application in this court.

57. An application for a protective costs order was before me when I heard the applicants

application for specific disclosure on 26 October 2012. I deferred the application to

the date of the hearing so that it could be considered by a three judge court. MrWhale declined to make the application at the beginning of the hearing, preferring to

defer it until the application for permission had been determined. He then submitted

that the applicants liability should be capped at 10,000 overall, relying on the

principles set out in R (Corner House Research) v Secretary of State for Trade and

Industry [2005] 1 WLR 2600. It was submitted that it would be prohibitively

expensive, for the applicant to meet the entire costs of proceedings (R (Garner) v

Elmbridge Borough Council[2012] PTSR 250). The court has not been supplied with

detailed evidence of means.

58. The Council and the Mayor have incurred substantial costs in responding to this

application. They have accepted that there should be a limit and propose that the

applicant should pay 10,000 to each of them. We were told that 2,000 has been

paid to the Council and 1,500 to the Mayor following the hearing below and that a

further sum was paid to the Secretary of State, who is no longer a party. We agree

with the proposals made by the Council and the Mayor. They involve a figure for

costs very much less than the costs actually incurred.

59. The applicant has acknowledged that, in the event, he must be expected to pay some

costs. The sum proposed by the Council and Mayor does, in our judgment, give as

much protection to the applicant as is his entitlement in the circumstances. If we are

correct in our assumption that 2,000 and 1,500 have already been paid, it follows

that there will be a further order for 8,000 in favour of the Council and 8,500 in

favour of the Mayor. If the assumption about the sums already paid should not be


13/13

correct, the sum to be paid to provide a total of 10,000 in each case can be amended

in writing.

60. The applicant has been acting as representative claimant on behalf of BVAG, as

stated in the notice of appeal. We do not propose to consider the potential liability of

members of the Group but record that the question may be raised in other cases.

Lord Justice Etherton :

61. I agree.

Sir David Keene :

62. I also agree.

Case No: C1/2012/2524 - 15 November 2012 - Judgment - 1738

Documents

Transcript of Case No: C1/2012/2524 - 15 November 2012 - Judgment - 1738