ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST
(Mr Justice Ouseley)
B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE JUDGE
| THE QUEEN on the application of YOUNG
|OXFORD CITY COUNCIL
of Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2HD
Tel: 0207 404 1400
MR R TAYLOR (instructed by Oxford City Council Legal Services, Town Hall, Blue Boar Street, Oxford) appeared on behalf of the Defendant
Crown Copyright ©
"1.1 Many planning applications affect heritage assets. Most either enhance, or are not materially damaging to, the asset or its setting, they conform with other planning policies, and planning permission rightly follows ...
1.2 On occasion, however, 'enabling development' is proposed which, whilst it would achieve significant benefit to a heritage asset, would normally be rejected as clearly contrary to other objectives of national, regional or local planning policy ...
1.3 Such proposals are put forward on the basis that the benefit to the community of conserving the heritage asset (and sometimes additional objectives, for example providing affordable housing or employment) would outweigh the harm to other material interests.
1.4 The essence of a scheme of 'enabling development' is that the public, typically the community in a particular area, accepts some disbenefit as a result of planning permission being granted for development which would not otherwise gain consent, in return for a benefit funded from the value added to the land by that consent ... "
Consideration by Committee
"10. ... Accordingly, it is the officers' view that the setting of the listed building would not be demonstrably harmed by the proposed mews buildings ... ...
12. Returning to the proposed mews building specifically, it is important to point out that this element of the scheme has been brought forward especially as a means of enabling the whole development to be financially viable. ... ...
15. Officers welcome this package of proposals, which allows for the refurbishment and putting into full use a listed building whose condition has given serious rise for concern over a long period. Costings of the enabling mews development, which officers consider acceptable in itself and in relation to the listed building setting and in relation to the listed building, its setting, and the conservation area have been requested and those are likely to be available for update at the Planning committee."
"be deferred for the Head of Planning Control and Conservation to seek amendments to the design, density, proposed materials and siting given the close proximity to the listed building of the terraced block of mews houses."
"However, the Committee expressed its support for the proposed refurbishment of Hill Top House and asked that any amended plans received be reported back to the Committee."
"... do not propose to amend the permitted scheme in any way, because, as they point out, the 5 mews units are necessary as enabling development, to provide for the costs of repairing and refurbishing the listed Hill Top House building to be met, in compliance with building regulations, environmental health and listed building consent requirements. The agents have provided a basic financial breakdown that estimates the associated costs of repair and refurbishment of Hill Top House as being in the region of £1,145,000 and that without the 5 new build mews units, this cost cannot possibly be met simply from the re-sale value of the refurbished flats in Hill Top House itself. They estimate a loss of around £260,000 would accrue, without the new build units involved."
"They further set out that the finished scheme will provide 5 units, suitable for family accommodation in Hill Top House and that the proposed mews development has in their opinion been designed to respect and complement the listed building, yet add an interesting and imaginative small new development In a style that would respect the character and appearance of the main house, using materials that would weather well and relate to buildings on the site as well as neighbouring sites."
"Officers stand by their previous assessment of the development. In brief, they consider that this package of proposals allows for the sensitive refurbishment of the Hill Top House Listed Building, bringing it back to a good standard of residential use in so doing. The enabling mews development is considered to be well designed in itself and relates well to the setting of the listed building. Subject to the conditions which were set out in the previous report's recommendation, officers support the scheme as submitted."
"17. I have eventually been persuaded that the submission of Mr Taylor [counsel for the council] is right, that it is not just for the claimant to show that the members found the design unacceptable in September 2000 and continued to find it unacceptable in 2000, allowing the financial considerations to override the desired deficiency. I accept Mr Taylor's submission that they have not succeeded in so doing. In my judgment, the position of the Council members in September 2000 can be seen as a degree of unhappiness and concern about the design, density, materials and so on, but one in respect of which no concluded view had been reached. If it had been the case that a concluded view as to the lack of acceptability in the design and so on of the mews had been reached, I would have expected that to have resulted in a refusal rather than in a desire to negotiate and see what changes could be made.
18. I take the view as well that the provision of financial material, which may well have been done as a matter of further caution by the developers, does not of itself show that the councillors must have been regarding the development as objectionable. The material could, as I have said, been provided as a matter of caution by the developers and seen by the members not as the factor which outweighed the objections to planning permission, but merely as a further benefit. But, crucially, I take the view that if the members had in the end reached the view that the officers' advice was to be rejected, namely the advice that the mews houses were acceptable in their own right, and that it was only the financial circumstances that caused the permission to be granted, that would have been apparent in the resolution, and I do not accept that I should draw as the more probable inference that they retained and elevated to the level of an objection the concerns which they had on an earlier occasion about design. I take the view that the appropriate inference to draw is rather than that they were persuaded by the financial matters being made more explicit, that they were persuaded by the persistence of their officers in saying that the development was quite acceptable and they could find no justification for disagreeing with that assessment as to the acceptability of the mews."
"... if there had been a witness statement or material from the City Council which set out more explicitly what the basis for the decision was. As it is, the court has to draw an inference bearing in mind that it does not have the benefit of that statement."
"My recollection of the committee's deliberations at the meeting of 6th December 2000 is that there was disappointment that the desired design amendments had not been made to the proposed mews houses, and that they remained an unacceptable intrusion on the Listed house. However the applicant's reported financial justification for the mews houses as being essential to fund the main house's restoration and refurbishment, and the applicant's reported assertion that without the enabling development the restoration would not proceed, in my opinion persuaded the committee to grant the planning permission in spite of its reservations. Accordingly this was the committee's decision."
Admission of further evidence
Conclusion on merits
(1) it is common ground that the decision to be taken potentially involved a two-stage process;
(2) there would have been no procedural difficulty in the committee considering it as such;
(3) there would have been no difficulty in recording in the minutes of the meeting the basis upon which the decision was taken;
(4) that procedure was not followed and it is impossible to know with certainty the basis upon which the decision to grant permission was made: Ouseley J highlighted the problem;
(5) a policy document essential to a consideration of the second stage, if it arose, was not brought to the attention of the committee;
(6) the evidence now submitted by six members of the committee makes it impossible now to draw the inference that the decision was taken on the basis that the mews development was acceptable on its own merits;
(7) in the event, which now appears probable, that the application would have been rejected on its own merits, the permission could only have been granted on the second possible basis, that is as enabling development;
(8) it is common ground that a permission on that ground cannot stand because a material consideration -- that is the policy statement -- was not brought to the attention of committee members.
"I refuse permission to move for judicial review on the grounds of undue delay, or alternatively a want of promptness, and I refuse to extend time for so doing."
"For those reasons, I do not consider that the applications were made either promptly or, in respect of the one that was made outside, as I would judge it, the three month period (if one takes the resolution as the date) without undue delay, and I am not prepared, for the reasons which I have given, to extend time."
"(1) The claim form must be filed --
(a) promptly; and
(b) in any event not later than 3 months after the grounds to make the claim first arose."
"Promptly" and the Convention
"The question of whether an obligation to apply 'promptly' is sufficient to satisfy European Community law or Convention rights as to certainty does not arise in this case and I do not comment on it."
"... there is at the very least doubt whether the obligation to apply 'promptly' is sufficiently certain to comply with European Community law and the Convention for the Protection of Human Rights and Fundamental Freedoms. It is a matter for consideration whether the requirements of promptitude, read with the three months limit, is not productive of unnecessary uncertainty and practical difficulty."
"On the other hand, it has repeatedly been acknowledged that applications in such cases should be brought as speedily as possible. Ample support for this approach is to be found in the well-known observations of Lord Diplock in O'Reilly v Mackman  2 AC 237, 280-281 to the effect that the public interest in good administration requires that public authorities and third parties should not be kept in suspense for any longer period than is absolutely necessary in fairness to the person affected by the decision; see also R v Dairy Produce Quota Tribunal for England and Wales, Ex p Caswell  2 AC 738."