An application for leave to appeal can be made at any time, but it is easier if it is made quickly. Justice Sedley would not grant leave after the judicial review, saying that there was no point of law in contention. By convention the Court of Appeal does not deal with issues of fact, although there are exceptions to this where new evidence is found.
Although we suspected after the surprise attack in the High Court that there was something fishy about the missing file, we had no evidence of any malpractice. It was therefore necessary to submit a holding application for leave to appeal, based on some rather contrived legal arguments, while urgently seeking information about the true fate of the missing file for 99-24/8/93/OT.
Despite the earlier letter from the Treasury Solicitor, Leeds City Council officers were adamant that they had never seen this file when the Leeds Development Corporation was dissolved in March 1995. The missing file was a public document which was listed on an agreed schedule of important LDC records to be preserved. It seemed to us that it might have been stolen. Accordingly, inquiries were made of the West Yorkshire Police.
After several weeks the Police reported that the file had not been stolen, but had been destroyed in the offices of the Leeds Development Corporation. We sought further details, and eventually were told that the missing file was destroyed by Alan Goodrum, the LDC Director of Planning.
In the meantime, duplicate copies of some documents from the missing file had been located in various Leeds City Council departments. These were mostly correspondence between the Council and the LDC about highway and planning issues, but they also indicated a close relationship between the developer (Kirkstall Valley Properties Ltd) and Leeds Development Corporation, who were the temporary planning authority. A real bonus was a verbatim transcript of an LDC board meeting in October 1993, which showed LDC officers and members attitude towards the original planning application 99-24/8/93/OT. We ourselves had a tape recording of the July 1994 LDC meeting which included the principal debate on a later application 99-24/6/94/OT, but our recording was far more valuable when it could be compared with the processing of the earlier application. There was also an opportunity to carry out a detailed statistical analysis of various reports which Mr Goodrum had placed before the LDC board. Although the High Court concluded that the LDC gave independent consideration to the 1994 planning applications (when the Chairman's pecuniary interest had disappeared) we discovered that over 90% of the text in Mr Goodrum's report on the successful application had been "recycled" from his earlier reports.
By this stage the Campaign was in dispute with its original solicitors over escalating legal costs, and found considerable difficulty in getting its new evidence before the Court of Appeal. It seems to be a matter of common experience in the legal profession that High Court officers are friendly and helpful towards inexperienced litigants, but many of those who service the Court of Appeal are much less tolerant.
Unexpectedly, the Appeal Court suddenly announced that our application would be considered by three judges during the vacation with our opponents represented. This enormously increased our costs, at a time when we had very little money. It also meant that a "stand in" barrister would be required because our experienced lawyers were unavailable. After close of business on the evening before the hearing, the Campaign received a huge facsimile message, which took an hour to transmit. In it was an affidavit from the Treasury Solicitor, exhibiting a letter dated 28 January 1996 from Alan Goodrum in which he described his role in the deliberate destruction of the LDC planning records. The Treasury Solicitor had this vital information throughout the judicial review. He had not disclosed it to the Campaign, despite our vigorous inquiries, thereby denying us an opportunity to cross-examine Mr Goodrum, who was a principal deponent for the Secretary of State. The Treasury Solicitor then sat on this information for a further six months.
Our temporary barrister had already left his office for the night, so he first saw the new affidavit while waiting to be called in the Court of Appeal. He was unfamiliar with the people involved, or the detailed circumstances of the case, and confined himself to his prepared speech on our original "placeholder" grounds for appeal.
The Appeal judges were unsympathetic, dismissing the application out of hand without hearing the other side. Their summing up made no reference to the destruction of evidence by Mr Goodrum, or the non-disclosure by the Secretary of State during the judicial review, and we doubt whether the judges ever examined the new affidavits and exhibits from the Treasury Solicitor and the Kirkstall Valley Campaign. It was an immensely frustrating experience: unable to speak for ourselves we were totally dependent on our barrister. We thought the appeal judges were correct to dismiss the pathetic arguments made before them, but they were not listening to the case that we wanted to put in the Court of Appeal.
When we returned to Leeds there was an opportunity to perform a detailed audit of the surviving LDC records. In all we identified 1514 planning applications processed by the Leeds Development Corporation between October 1988 and March 1995. The records for 1513 application seemed to be intact, and only one LDC file was missing: 99-24/8/93/OT - the most controversial application handled by the Corporation. It had exercised the LDC for almost two years and attracted a record 1,800 written comments from the public. It was the application where the Chairman of the Corporation had failed to declare a substantial pecuniary interest.
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It is of interest to examine the explanation given by Mr Goodrum on 28 January 1996 for his destruction of the LDC planning file. He claimed (italics) that:
(a) [The file] had no definite destination. The file for 99-24/8/93/OT was listed in the agreed schedule for transfer to Leeds City Council.
(b) Material... that... included information necessary to understand other decisions would be handed over to the appropriate body. The subsequent decisions on 99-24/4/94/OT and 99-24/6/94/OT were based on policies previously accepted in relation to 99-24/8/93/OT. In particular the decisions (i) to depart from the statutory development plan, (ii) to depart from the LDC planning framework, (iii) to depart from the emerging UDP, (iv) to dispense with a formal environmental assessment, and (v) to accept the developer’s estimates for traffic, trade diversion and employment, were all taken in relation to the original 1993 application. Withdrawal of the original “comprehensive” scheme 99-24/8/93/OT was a condition for the approval of the “compromise” scheme 99-24/6/94/OT.
(c) Very full descriptions of the application and representations would be retained as part of the Board papers. They were not so retained, as indicated by the subsequent difficulty in locating copies of the retail impact assessment by DTZ Debenham Thorpe. In disposing of the file, Mr Goodrum destroyed the trenchant critique of his LDC reports by objectors to the scheme, most of which was never reported to the Board. Additional Highway information that was available to LDC officers is still coming to light, from the Leeds City Council files.
(d) No verbal or written request had been made to me by the Corporation, Department or City Council for the material’s retention. The file was listed in the schedule for transfer to Leeds City Council, that was agreed between the Council and the DoE. It was the only file to be destroyed. The most trivial details of all other applications were kept.
(e) If I believed that there was any possibility that a judicial review might take place of matters relating to the application, I would have passed the file to the Department. On 8th January 1996 Mr Goodrum swore an affidavit for the judicial review and stated at paragraph 139 that he was put on notice no later than July 1994 that a judicial review might take place. The possibility of a judicial review had been reported in Leeds newspapers since July 1993. The developer and the LDC were aware of this, and on page 10 paragraph G of the official LDC transcript of the October 1993 Board meeting, Mr Goodrum drew attention to a letter from Mr Pearlman stating that the Kirkstall Valley Campaign might pursue proceedings for judicial review.
(f) This application had not been the subject of a complaint to the Ombudsman. There were two complaints to the Local Government Ombudsman relating to this application: complaint number 93/C/3792 from Dr Huby, and complaint number 93/C/4407 from Mr Lamb. However, it is possible that Mr Goodrum was unaware of these complaints, because they were not properly investigated by the Ombudsman. All the other LDC planning files were retained, whether or not there had been an Ombudsman complaint.
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