The Leeds Development Corporation finally issued an outline planning consent on application 99-24/6/94/OT on 2 February 1995, although it was several weeks before the associated documents were available to the public. The approval of reserved matters (99-24/4/95/RM) followed a few weeks later on 29 March 1995, the very last day of the Corporation's existence. The public have no right of appeal against a planning approval. The only method to overturn these consents was through the arcane process of judicial review.
Judicial review is a two stage process, whereby the applicant first obtains permission from the High Court to commence the action, and then the full hearing follows later. In some cases, leave to proceed may be granted by a single judge after reading the papers, but in other cases there is a preliminary hearing where both sides are represented. The applicant must demonstrate some illegality (or, very rarely, stupidity) in the disputed decision. In our case we felt that the Development Corporation were biased because some board members had close connections with the local landowners.
Applications for leave to apply for Judicial Review must be made as soon as possible, and in any event within three months of the events complained of. The requirement for speed caused us enormous problems and KVC was lucky not to fall at the first hurdle. Our solicitors advised against judicial review, and demanded more money than we possessed to start the action. Unlike a private individual, a limited company like the Kirkstall Valley Campaign cannot commence any UK court proceedings in its own right, but must always act through a solicitor. It is not clear whether this rule includes the initial application form, seeking permission to start the action. Having nothing to lose, we decided to file a "do it yourself" application anyway, in the hope that we could raise the necessary funds if leave to proceed were granted.
None of us had any legal training. Our main guidance came from legal text books, and a copy of the lawyer's "White Book" borrowed from the Leeds City Council library. The High Court officers themselves were quite helpful. On occasion friendly lawyers advised us about court procedure, although judicial review is such a specialised remedy that few have any personal experience of it. Most of the time we were on our own. We had no idea what evidence to include, or how much of it, and consequently tried to include everything. Precious weeks drifted by as we struggled to sort, paginate, photocopy and index many hundreds of individual documents. It was also necessary to draft our legal arguments for the application form "86A" and prepare a sworn affidavit in support.
The resulting bundles were almost too heavy to lift. Having missed the train to London on 1st May because of a muddle over the exhibits and swearing the affidavit, we eventually filed the application with minutes to spare on 2nd May 1995, one day before the three-month deadline.
Our incompetence was probably our salvation. Nobody wanted to read our voluminous bundles, which consequently ended up in some legal backwater inside the Crown Office. By the time our application was eventually processed (and found to be defective) we had managed to get our act together and made a much better stab at the later attempts. Nobody seems to have noticed that the Campaign was an unrepresented limited company which perhaps had no business to be filing its own papers anyway.
To cut a long story short, we were eventually granted leave to proceed after an opposed inter partes hearing before Justice Turner on 23rd October 1995. By this stage we were legally represented. Lawyers acting for Wm Morrison Supermarkets plc successfully applied to join in the action, and were granted an expedited hearing, on the grounds that the judicial review was delaying their commercial operations. This claim ultimately proved to be incorrect, because they could not make the access roads work. Morrisons also made an application for "security for costs" which would have meant that KVC had to guarantee the cost of Morrison's lawyers before we could start the action. We could not afford to do this, however the High Court saw Morrisons application as a spoiling action, and turned them down with costs awarded in favour of KVC.
Having been granted leave to proceed, the Campaign sought financial suppport from Leeds City Council, because the judicial review was a "public interest" action, which could be funded under section 137 of the Local Government Act. Unfortunately this application coincided with the election of a new Council Leader (Jon Trickett having secured a Parliamentary nomination) and it was several weeks before the Council was able to reach a favourable decision. It was also feared that the expenditure might be challenged through the District Auditor, causing the councillors to use the ponderous formal committee procedures instead of the quicker mechanisms available for uncontentious items.
The practical effect was that the Campaign could not pay any of its lawyers until after the judicial review hearings started on 20 February 1996. The case was consequently argued on artificially restricted grounds, and much of our evidence was never put before the Court. The "core bundles" of documents were prepared for the Court, not by the Campaign (who had no funds to pay for this) but by the Secretary of State for the Environment working in collaboration with Wm Morrison Supermarkets plc. Although at first site the selection of evidence appeared reasonable in relation to the skeleton arguments, it contained an enormous gap, which later allowed the Secretary of State to completely change the direction of his case. The expedited hearing caused serious problems for the Campaign, and was a source of great injustice. It was impossible for an inner-city residents' group with part-time unpaid workers to keep pace with a major supermarket chain and the Secretary of State who had essentially unlimited resources.
One source of difficulty was that many of the Leeds Development Corporation records seemed to have disappeared. In theory all the LDC planning files should have been handed over to Leeds City Council when the Corporation was dissolved in March 1995. Most of them appeared to be intact, but one file for the original 1993 application 99-24/8/93/OT by Kirkstall Valley Properties Ltd could not be located. This was known to be an enormous bundle, containing perhaps 4000 pages. Leeds City Council had partial copies of the application forms and some of the comments from the public, but all records of the detailed negotiations between the developer and the planning authority had vanished without trace. The Treasury Solicitor, representing the Secretary of State, suggested in a letter to the Campaign in January 1996 that Leeds City Council had received the missing file, but had subsequently lost it. There the matter rested throughout the judicial review.
Essentially, the Campaign's case was that members of the Leeds Development Corporation had repeatedly failed to declare their personal interests during their consideration of the planning applications in the Kirkstall Valley, and the whole process was contaminated by bias and the eventual decisions should be quashed. Lack of time and money caused us to omit a huge quantity of supporting evidence, which suggested that not only was there a suspicion of bias, but also that the actual consideration of the applications was defective, and that much of the "information" supplied to the LDC board between1988 and 1995 was either incomplete, or misleading, or factually incorrect.
The case lasted eight days. The full text of the judgment handed down on 6 March 1996 is 150 kilobytes, and may take some time to download. Links to the major topics are listed below:
It is clear from the Judgment that the Campaign won most of the key points, clarifying the law of bias in relation to public bodies, and establishing that the Chairman of the Leeds Development Corporation had not declared his pecuniary interest in the 1993 planning application by Kirkstall Valley Properties Ltd.
However, we had insufficient evidence linking the defective 1993 planning application (where bias was clearly established) and the 1994 planning applications from the same developer which were eventually approved by the Leeds Development Corporation.
It seemed to us, having attended all the relevant LDC meetings, that there was an obvious connection between all three major planning applications submitted by Kirkstall Valley Properties Ltd. They were all for the same size supermarket, on the same piece of land, and the only differences between them were in the ancillary features. Indeed, many of these differences were more apparent than real, because they were confined to illustrative drawings which did not form part of the formal outline planning applications. Unfortunately, the original copies of these applications were not considered by the court.
The Campaign was astonished when the Secretary of State introduced his new argument about a "discontinuity" between the planning applications at a very late stage in the High Court hearing. It did not appear in his skeleton arguments, so there was no opportunity to prepare for it, or to submit evidence showing it to be incorrect. The correct procedure would have been to seek an adjournment when the novel argument was introduced, but we had no funds to pay for this, neither could we afford to pay a solictor to sit in court to instruct our barristers.
We were also severely hampered by the lack of the missing file for 99-24/8/93/OT, which was the obvious place to seek a connection between the various planning applications. It was the only file covering the entire relationship between Leeds Development Corporation and Kirkstall Valley Properties Ltd, and would normally contain the pre-application discussions leading to the successful 1994 planning applications. Even as we left the High Court we suspected that we had been misled, and that important evidence was missing, but we had no comprehension of the deception that would eventually come to light.
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