England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE COLLINS)

		Royal Courts of Justice Strand London WC2 Monday 11th February 2002

1. LORD JUSTICE BUXTON: This is a renewed application for permission to move for judicial review, the original application having been rejected by Collins J after an inter partes hearing at the end of which the learned judge delivered a judgment which extended to some 28 paragraphs.
2. The applicant is Dr Mary Reynolds and she seeks judicial review of a decision taken under delegated powers by a subcommittee of the Newport County Borough Council which granted planning permission for listed building consent in respect of a building known as Priory House. Dr Reynolds lives next door to the premises in a house now called Broad Towers. The building was all originally one but at some stage it was divided. Therefore Dr Reynolds lives in close proximity to Priory House and is very understandably highly concerned about what is proposed in respect of it.
3. The permissions were both planning permission and listed building consent. The building is listed because it was originally built in the 18th century, there having been substantial modifications in recent times, the extent of which and the benefit or otherwise thereof being a matter of some controversy. What is proposed, and it is this aspect amongst others to which Dr Reynolds takes objection, is that the premises next door to her, that is Priory House, should be converted to a guest house. As she explained to me this afternoon, she is particularly concerned that the premises will, under those arrangements, be occupied not by persons whom she knows, local residents, but by a fluctuating mass of persons who are not from the local area.
4. It is clear that this application caused a substantial amount of dispute in the local area and Dr Reynolds has told me that many persons other than herself took objection to it. The objections deployed by Dr Reynolds can, I think, be summarised as follows. First, the listed building consent should not have been granted because the modifications proposed to the building were inappropriate and incorrect for a building of a Georgian nature such as Priory House was and is. Secondly, that the alterations proposed and the presence within the house of visitors would seriously adversely affect the amenities of Dr Reynolds and her sister who inhabit next door premises, particularly by reason of their house and garden being overlooked by residents in Priory House. Thirdly, that there were inadequate arrangements proposed for parking at the guest house and therefore guests would either park inappropriately in the public areas or alternatively or cumulatively be delivering themselves and their possessions, or trades people would be delivering, by parking in the street outside and thereby causing not only amenity problems but also safety hazards to a large number of persons and school children who use the particular area. And fourthly, that although it was identified by the local planning authority that considerable works of restoration need to be done in order to restore Priory House to the condition it properly should be in as a listed building, no condition was imposed by way of planning control to ensure that those works were done before the guest house opened.
5. Dr Reynolds had the benefit of being represented before Collins J by junior counsel extremely experienced in this area of work. I have every confidence, and it has not been suggested otherwise, that the case was carefully and fully put to the learned judge. The judge rejected the application for judicial review in terms that I shall shortly come to. That having happened, the application with which I am concerned was made to this court. That was formulated on Dr Reynolds' behalf by leading counsel, Mr Lionel Reid QC, who explained there that only two grounds of those deployed before Collins J would be pursued. The matter came before me on paper at the end of 2000 and I rejected both of the grounds then pursued in terms that again I will have to revert to.
6. It is open to an applicant whose case has been rejected on paper in this court to make an application to the court sitting in open court. The grounds sent to the applicant after my decision in December drew her attention to the case of Khreino v Khreino [2000] 1 FLR 578, which indicates the limited use that ought properly to be made of this facility. Nonetheless the court was informed that such an application would be made and it was informed that leading counsel would not be available to move it until the month of March. I ordered that the application should be heard before then, originally at the end of January, because it would be appreciated that, whatever the rights and wrongs of the dispute are, those who apply for planning permission and the local authority who have to deal with it cannot be left indefinitely in doubt as to the fate of the application whilst litigation pursues its course. Whether for that reason or for any other (I do not know and it is no concern of mine) Dr Reynolds is now representing herself, her solicitors having taken themselves off the record. She has addressed me today, and has provided a skeleton argument setting out the grounds on which she complains of the judgment of Collins J. In that document she has reverted to a number of matters that did not form any part of the application made to this court on her behalf by leading counsel. I indicated to her that it was unusual in the absence of extremely good reasons for this court, on a renewed application, to consider any matter that had not been part of the original application, more particularly an application formulated by lawyers, in the absence of exceptional circumstances, none of which as I can see apply here. However I understand that Dr Reynolds feels very strongly about this case, and as a concession to her I have permitted her to develop all the points in her skeleton argument, and I will indicate my view on them in due course.
7. I apologise for that lengthy introduction to the substance of this judgment, but in my view it was necessary to explain the circumstances and background to this application, not least to make clear that the matter has received the attention, and the extensive attention, of a significant number of persons skilled and well-informed in this area of law.
8. I shall now revert to the judgment of Collins J. Before I do so, I think it is necessary to make clear that Collins J did not sit and this court does not sit in order to reconsider the substance and merits of the decision taken by the local authority. It is understandable that in her submission to me this afternoon Dr Reynolds criticised, almost exclusively, the decision that the local authority made. But it is not the function of the court on a judicial review application to re-enter the merits. All that the court can do is to intervene if there has been an error of law committed by the local authority, and it is important that, however strongly Dr Reynolds disagrees with the decision taken by the local authority, that should be understood. Speaking entirely for myself I can quite see how the local authority could well have decided the matter differently. Dr Reynolds says that the conclusion was only reached by a very narrow majority, but the fact that the decision is controversial, and that it could have been decided in a different way, does not mean that the decision that was actually made was wrong in law - any more by the same token that it would necessarily follow that if there had been a decision contrary to the applicant, which they no doubt would have complained about, the court would have been able to intervene either. Having said that, I turn to the substance.
9. The judge dealt with a number of procedural matters, including in particular whether site notices had been displayed, and indicated that that was not a matter that the court could enter into. That is one aspect of the case that appears not to have been pursued by anybody. The second point that the judge addressed was a complaint that the local authority had failed to comply with section 15(5) of the Listed Buildings Act, in that it had failed to notify, it is said, various societies set out in paragraph 10 of a circular published by the Welsh Office. The obligation arises when works, including demolition, are to be carried out, or are proposed to be carried out, on a listed building. The judge was told that the local authority had not simply ignored that requirement but had taken the view that the works involved did not include any work of demolition, and therefore did not form that consultation of the society was required. Counsel for Dr Reynolds sought to demonstrate to the judge that that was not the case. The judge's preliminary view was that counsel for Dr Reynolds was probably right. However, the local authority, although apparently only after the decision had been made, did consult various societies. A dispute arises with regard to the Council of British Archaeology in its Welsh capacity and I will come to that shortly. But the judge was persuaded on evidence that he saw from comments from the Historic Buildings Council and from the Georgian Group that even if full consultation had taken place it would have made no difference to the decision: because the Georgian Group, rightly or wrongly, and Dr Reynolds says very strongly wrongly, indicated that it was not raising objections to the works proposed. Having said that, it is important to note that the case was put on Dr Reynolds' behalf before the judge on the basis that the failure to consult the amenity societies made the grant of permission unlawful in itself. That is to say, that it was irrelevant what the amenity societies thought or might have thought: permission could not lawfully be granted simply because they had not been consulted at all. The judge did not accept that view, which is why he thought it open to him to turn his mind to what they would have said had they been consulted.
10. The matter of the amenity societies was one of the matters that was relied on in rather different factual terms in the written grounds of application and I will come back to it when I address them.
11. The next complaint regarded the overlooking and lack of amenity caused to Dr Reynolds by the developments. In the officers' assessment the objections were set out, including overlooking in respect of a bathroom window. The objection that was raised before Collins J, as I understand it, and strongly emphasised by Dr Reynolds, is that no regard was made to a matter of which she particularly complains, that is to say that French windows are to be inserted which will lead to the residents of the next door premises passing very close to her own back door. In the committee report nothing was said about that. I agree, I fear, with the judge that it was a matter for the members to determine whether that was in the overall context a point of importance. It is not at all clear that they were not aware of this complaint, and in my judgement the judge was right to think that it was for the members to determine whether that point was of such significance that it changed the decision that they would otherwise have made, as I say rightly or wrongly, that the no doubt undoubted damage to Dr Reynolds' amenity was sufficiently severe to prevent the applicant using the premises as he wished to do. That again is a matter of factual dispute and not one that the court can enter into.
12. The third point concerns what I have already indicated is the traffic and highway objection. The official report recommended refusal on grounds of limited parking: lack of parking facilities at Priory House itself and the limitations on parking in the immediate area. The committee did not agree with that assessment, and in particular did not agree on the basis of an assessment by the planning site inspection subcommittee which looked at the matter and pointed out that bollards and double yellow lines were already provided outside the premises and that there was a pedestrian crossing provided nearby. The committee considered that because of those limitations was that visitors could not park on the corner near to the premises. That was a view that they were entitled to take. Dr Reynolds says that people ignore the bollards and double yellow lines, but the Council was entirely entitled, and certainly made no error of law, in forming that view. The committee went on to say that adequate public parking was provided in the immediate vicinity. That is said to have been a factual mistake. But as Collins J pointed out, the question of parking, as opposed to safety, is very much a matter for those who are running the business to determine whether they can properly run it without making sufficient parking facilities available. In that context also the committee limited the use of the premises from six bedrooms to three, clearly intending that the rate of use should be limited in the interests of safety. Even if there was a mistake in what the members considered to be the position about public parking, I again wholly agree with the learned judge that there could be no sufficient error of law in that assessment for it to be appropriate for the court to require the matter to be revisited. It is clear to me that the overall position of safety was considered by the local authority, and I am bound to comment, as I commented in my written observations, that in the notice of application settled by leading counsel no reference was made to safety considerations, as opposed to the more limited matter of parking.
13. Fourthly, and this is not a matter contained in the written application, Dr Reynolds complains of the failure of the council in not imposing an obligation to make the premises good. That is a matter for them. They may have been, as Dr Reynolds thinks, naive about that, but that was not an error of law, as Collins J rightly held.
14. I now turn to a matter which is relied on in the written application, but which was not before the learned judge. One of the bodies required to be consulted is the Council for British Archaeology and it was not so consulted. The Council for British Archaeology, in its Welsh activities, appears to be controlled and in effect consists of one person, a qualified architect, Mr Jon James, who until the end of 2001 was apparently the person who dealt with archaeological matters in respect of Welsh affairs. The present application for renewed permission was filed at the beginning of September 2001. On 23rd October 2001, but not before then, Dr Reynolds' solicitors wrote to the Council for British Archaeology asking what their view would have been had they been consulted about this proposal. Mr James wrote back in November saying that he would have taken an unfavourable view of it because of the interference with Georgian architecture and fenestration of the building.
15. The application was therefore made to this court, and I have to address it, for that evidence to be adduced as fresh evidence, which would affect the decision on the appeal. It is unfortunate that the application, when it sought to explain why that evidence was not before Collins J, said that it had not been available until 26th November and therefore could not have been adduced before Collins J. That statement did not properly explain that Mr James had not been approached, as I say, until some substantial time after Collins J had made his decision. That was a serious omission. Further, it would have been perfectly possible for the applicant herself or her then solicitors to have approached the CBA at some considerable time before the hearing before Collins J, had those advising Dr Reynolds thought at that time that that was relevant. But they did not do so because as I have explained they were of the view, and conducted the case on the basis, that the omission to consult the Council for British Archaeology and other persons rendered the application in itself defective, and one that the Council could not grant. The case has now changed but the case as it is now put (because as I understand it it is accepted that Collins J was right to say that the merits of the matter do matter) could have been adduced before the judge. I am therefore of the clear view that the Court of Appeal would not have received this evidence. I am also of the clear view that the evidence would not be dispositive in any event, for the reason that I have already indicated on paper. I do not understand how the Council of British Archeology can properly be regarded as a relevant consultee to deal with concerns about an 18th century building. Even if this material had been before Collins J I have no doubt at all that he would have persisted in the view that he took that the Georgian group, which was the consultee most concerned with buildings of this age, had no objection to these proposals.
16. For those reasons, therefore, which in deference to Dr Reynolds I have explained at some considerable length, this application is not granted.