England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
ADMINISTRATIVE COURT
(MR JUSTICE OUSELEY)

		Royal Courts of Justice Strand London, WC2
		14 May 2003

1. LORD JUSTICE CARNWATH: In 1990, despite intense public controversy, the then Secretary of State approved the construction of an extension to the M3, in the vicinity of Winchester, passing through chalk grassland of Twyford Down. One of the compensating factors, referred to in the decision letter as a "major environmental benefit", was the proposed removal of the existing bypass and the reclamation and planting of the area. Since then the M3 extension has been built and its effect on the Down is there for all to see. At the same time, the previous bypass has been removed and the land reinstated to produce what are now flourishing grass meadows, known as Bar End Meadows.
2. In the meantime, however, the Hampshire County Council, as highway authority, were addressing problems of congestion in Winchester. They decided that the best solution would be the provision of a new Park and Ride car-park. Unfortunately, they also decided that the best site would be Bar End Meadows. In 1996 they submitted an application for planning permission for that purpose. That application came to the County Council as planning authority, but was called in for decision by the Secretary of State. A planning inquiry was held over four days in late 1997. The inspector recommended grant of permission subject to conditions, and the Secretary of State agreed. The permission was dated 21 October 1998.
3. In the course of his decision letter the Secretary of State considered the scope and relevance of the commitment given in 1990. He accepted that it was a material consideration in the planning judgment, but not that it imposed any legal restriction on the use of the site as now proposed. That matter is not in issue before us. The inspector, however, commented on how people were likely to regard the background. He stated in his report at paragraph 9.10:

"I would make one final observation which I believe to be material, albeit only marginally a planning matter. It is that whether or not they are justified in adopting such a view, the majority of local people appear to regard the undertaking as a pledge to keep the restored former bypass in perpetuity as an open grassed area, available for purposes such as agriculture, amenity and recreation. I believe that, irrespective of the planning merits of the case, such people are likely to view the approval of the present development as an example of the local councils reneging upon such a pledge."

The strong feelings reflected in that statement are all the more understandable when one looks at the photographs of the meadows as they now are. However, our role is confined to looking to see whether the legal requirements have been fulfilled.

4. On the planning merits, apart from the issue of the alleged undertaking, the inspector had summarised his conclusions as involving a balance of benefits and disbenefits (see paragraphs 8.61 to 8.62 of his report) - including, on the one hand, the harm which would be caused to the city's rural setting and, on the other, the fact that the proposals were a "key element in the council's integrated transport strategy for Winchester" and that the suggested alternative sites would "seriously distort that strategy". "Striking a balance between all these factors", he came down in favour of the proposal. The Secretary of State accepted that view. And, again, that overall judgment is not in issue before us.
5. The issues with which we are concerned relate to the council's proposal to mitigate the loss of the application site by providing a replacement site, which could be treated and managed to provide equivalent ecological benefits to the Bar End Meadows. Twelve sites were put forward for discussion at the inquiry, but by the end of the inquiry the practical choice had come down to five, one of which, known as site 11, was already in the ownership of the council. The inspector explained the issues and his views on it in his report. First, at paragraph 8.30 he referred to the value of the site which was small in ecological terms at present but which had considerable potential. He identified the question as "whether the mitigation sites proposed by the councils provide adequate recompense for the loss of this ecological potential". He continued at paragraph 8.31:

"The councils investigated a number of sites and the selection criteria they applied reduced this list to five. All of these were larger than the area of potential chalk grassland which would be lost at the application site, and none of them appeared to have a lower ecological potential. Four are currently in private ownership ..... The fifth is already owned by the Council ..... It is my conclusion that there would be no objective loss of ecological value in the area of Winchester as a whole should one of these sites replace the application site. On the other hand, I agree with objectors that in terms of the human appreciation of that value there would be a loss because all of the suggested sites would be further from the built-up areas than the application site."

Returning to this issue later in his report, he gave his conclusions at paragraphs 8.51 to 8.52:

"8.51 It was generally accepted by participants at the inquiry that, given time and good management, the five sites which emerged from the councils' analysis could be as valuable ecologically as the application site. I agree. The objectors' main point was that the sites would all be much further away from Bar End than the application site, and therefore much less accessible to the majority of people likely to visit them. I believe that this point has merit although, obviously, some sites would be further away than others. On the other hand I consider that the proximity of the application site to the industrial estate and the existing car park leaves it with less ecological potential than all five of the proposed replacement sites. In addition all five are adjacent to existing areas of ecological importance which adds to their value in such terms. Site 11 has added value because it is in council ownership, and could be most readily brought into ecologically valuable condition, but it is also, by a considerable degree, the furthest of the five from residential areas and from the application site.

8.52 I conclude that, in terms of ecological value to Winchester and its setting, four of the five sites are acceptable replacements for that area of the former bypass which would be lost should this development go ahead. The inferior accessibility balances the increased ecological potential for all except site 11. My preference would be first for sites 4 and 8 which are both close to Bar End and also to an important SSSI, then sites 3 and 7, and lastly site 11."

6. He recommended the grant of permission, subject to a number of conditions which he set out in appendix 2 to his report. One - condition 5 - was designed to ensure that the mitigation site was provided. He worded the condition as follows:

"(5) No development shall take place until alternative grassland in mitigation for the 2.66 hectares which will be lost as a result of the application has been secured and provision made for its long term future in accordance with details to be approved by the Local Planning Authority. The choice of site shall be limited to those discussed at the inquiry ..... "

He gave the reason:

"To ensure that there is no overall harm to the ecology of the area."

7. The Secretary of State agreed generally with the inspector's overall assessment of the planning merits. In relation to the proposed mitigation measures, he stated (paragraph 9):

"The Secretary of State has taken note of the County Council's intention to provide ecological replacement sites to compensate for the loss of chalk grassland area which would be lost through the proposals at Bar End and that five potential sites emerged at the inquiry. He notes that the inspector listed an order of preference for the sites and the Secretary of State commends this order of preference to Hampshire County Council."

After dealing with the effect of the alleged undertaking and other matters, he referred to questions of mitigation sites in paragraph 16 in the context of his treatment of the environmental effect. He said there:

"The Secretary of State accepts that while the attractiveness of this important entrance to Winchester would be diminished in terms of its appearance and that the environmental benefits from the loss of this small part of the restored bypass would be slightly reduced, the effects will be minimal. He agrees that there would not be any serious loss in terms of recreation. He agrees that the provision of a mitigation site means that in terms of ecological value there will be no net loss to Winchester and its surroundings."

8. At paragraph 19 he concluded that in all the circumstances permission should be granted and stated:

"Accordingly, for the reasons given by the inspector and in this letter, the Secretary of State grants outline planning permission for an extension to the park and ride at Bar End, Winchester, in accordance with applications WO3011/04 and W03011/05 described in paragraph 1 of this letter, subject to the following conditions ..... "

Condition (v) was similar, not identical, to that proposed by the inspector:

"No development shall take place until there has been submitted to and approved by the local planning authority a scheme for the provision and management of alternative grassland (in mitigation for the 2.66 hectares which will be lost as a result of implementation of the permission hereby granted) on one of the sites marked 3, 4, 7, 8 or 11 on Plan 1 attached to Inquiry Document H3. The scheme shall be implemented as so approved."

The Secretary of State did not, in terms, repeat the reasons stated by the inspector, but he had already referred to his agreement with the inspector's reasoning.

9. One notes in that condition, first, that, unlike the inspector, the Secretary of State did not say that there should be no development until the mitigation site had been actually provided. He simply required that it should be approved before development began, and that it should then be implemented as approved. Secondly - and this time like the inspector - he referred to all five sites in the condition without distinction and without specific reference to the hierarchy of preference given by the inspector.
10. The council then set about preparing for implementation of the permission, including the condition. They accepted in the light of the inspector's comments that site 11, although already in their ownership and referred to in the condition, should be treated as a site of last resort. Sites 3 and 4 were in the ownership respectively of the Church Commissioners and Winchester College, neither of which, as it turned out, was willing to sell. Site 8 - a former waste disposal site - was owned by Southern Water. The site was highly contaminated. The view was taken that, although the council should actively pursue the improvement of that site, the technical and financial issues were unlikely to be resolved within the necessary timescale for the transport strategy. Accordingly, it was decided to proceed with site 7 at Magdalen Hill, which the owners were willing to sell. In addition to the site identified at the inquiry (which was already larger than the area of 2.66 hectares which was to be lost) they were able to acquire adjoining land giving a site of 22 hectares in total. Details under condition 5 were submitted to and approved by the Asset Management Sub-Committee on 9 July 2001. On 29 May 2002 amended details submitted on 29 April 2002, were considered and approved by a committee called the Regulatory Committee. (It is not clear whether this was a different committee or the same committee under a different name; but, in any event, it is not in issue that each committee had the necessary planning powers.)
11. It is unnecessary to look in detail at the reports and other documents which were put before the committees. It is sufficient to note the way in which the objections (which included issues relating to accessibility) were treated. In the report of the planning officer to the committee, on 9 July 2001, one finds the following at paragraphs 7.9 to 7.10:

"7.9 The principal concern relates to the location, amount and management of land - 'the mitigation land' - at Magdalen Hill offered as compensation to that lost by the Park and Ride development. This proposal has been the subject of a number of comments from members of the public and consultees, including objections from the Hampshire Wildlife Trust and English Nature. Their main concern is that the Magdalen Hill land is not sufficient compensation for the loss of the Bar End land in terms of public access and wildlife diversity.

7.10 The principle of using land at Magdalen Hill is in accordance with the condition attached to the planning permission for the Bar End development since it is one of the alternative sites listed in the condition. The critical issue is the amount of land to be provided in mitigation. A total of 2.66 hectares will be lost at Bar End as a result of the development and the details submitted for approval propose 9 hectares as mitigation. In addition, it is considered that the proposed management arrangements are satisfactory."

12. As is apparent from that, the committee was invited to approach the matter on the basis that the principle, not only of the development itself, but also that of site 7 as a suitable mitigation site, was, in effect, settled by the Secretary of State's decision. That this was the way it was presented to the committee is confirmed by the evidence in these proceedings of the county planning officer, Mr Greenwood, who said in paragraph 6 of his affidavit:

"In response to the representations I advised the sub-committee that issues concerning the principle of park and ride development at Bar End and the consequent loss of the land there was not relevant to its consideration of the approval of details. I advised that the quantitative terms of the mitigation land satisfied the relevant planning condition and the management arrangements for the land specified in the submission of details for approval, would result in the creation of chalk grassland consistent with the objective of the planning condition. In response to the accessibility issue raised, I reminded the sub-committee that Magdalen Hill was identified in the planning condition as one of the mitigation sites. I also reminded the sub-committee that the public footpaths adjacent to and through the Bar End site would remain and that there would be public access to the mitigation land."

The same approach was taken in the report presented to the committee in May 2002.

13. The present proceedings challenging both decisions were brought by Elspeth Murray, who lives near the site of the Bar End Meadows, and has a strong and sincere objection to their loss. She is also particularly concerned, being partially disabled, that any replacement site should be as accessible as possible. As I understand it, her preference is for site 4 or possibly site 8, both of which are closer to her and were also higher in the inspector's ranking than site 7.
14. There are two live grounds of challenge in the appeal. The first is that the authority had adopted an unduly narrow view of the planning issue relevant to its consideration of the condition. That contention was accepted by Mr Justice Ouseley when he quashed both decisions - that is, the decisions of July 2001 and May 2002 - on 21 November 2002.
15. The second issue arises from an earlier hearing on 28 June 2002, at which Mr Justice Burton rejected a contention that the submission of details in April 2002 was out of time under Section 92 of the Town and Country Planning Act 1990. That conclusion is, in turn, attacked by a respondents' notice.
16. Finally, in the history, I should mention that, in response to a suggestion made by Lord Justice Sedley, when initially refusing permission to appeal to this court, the proposals were re-submitted to the Regulatory Committee for consideration on 26 February 2003 with a report designed to address the concerns that led to Mr Justice Ouseley's decision. They were again approved. That decision of February 2003 is not directly before us. But I shall need to make some comments on it at the end of this judgment.

Material considerations

17. The judge attached importance to the controversial background of the case (see paragraph 54). He said:

"The question of what considerations are material depend on the purpose of the condition, and its terms. The context for ascertaining that is the very unusual background to this particular development: the development site was itself mitigation land for a very controversial road; there was a clear public expectation that it would remain undeveloped; the council obtained permission on the basis that any one of five sites would replace it adequately but that there was a clear order of preference to which it had to have regard."

18. Against that background, he said at paragraphs 63 to 66:

"63 Accordingly, in my judgment, the County Court erred in failing to consider and in failing therefore to consider the public's representations on the advantages which the site preferred to Magdalen Hill, notably St Catherine's, might have in terms of ecology and public accessibility in mitigation for the loss of Bar End Meadows. The occasional comment on road and bus accessibility does not deal with the gravamen of the point."

(I observe, in parenthesis that the St Catherine's site was site 8).

"64 I also consider that the ecological comparison has to be made between what Bar End Meadows has now become, together with its potential, and the potential of the various mitigation sites. It is in that way that the adequacy of the mitigation can be assessed and decisions made as to whether other land should be brought in to the mitigation equation. A comparison using Bar End Meadows' state as at 1997-8 involves an artificially blinkered approach; mitigation is required for what is to be lost, including its potential. There is no need to speculate as to its 1997-8 potential when that is now known.

65 .....

66 ..... What is required is an overall judgment by the council as planning authority that the combination of size of site, subsoil, current use, location, links, management, neighbouring uses and public accessibility means that there is no net ecological loss to Winchester and its surroundings and that appropriate compensation for the loss of Bar End Meadows is provided. That requires degrees of ecological gain and public accessibility to be considered through the detailed stage rather than simply the details of the one selected site."

He added at paragraph 68:

"68 I should add in saying that that I am not suggesting that the council did act unconscientiously in that respect. The evidence shows that in its developer capacity it did respect the order of preference, did try to pursue St Catherine's Hill and had good reason for turning to Magdalen Hill for the immediate future. However, it is for the planning committee, not the developer committee to reach an overall view on those issues with the benefit of public consultation."

19. Acknowledging the respect due to the special expertise of Mr Justice Ouseley in this area of the law, I regret that I am unable to accept that reasoning. It is of course true that the council was wearing two hats - one as developer and one as planning authority. However, in looking at the Secretary of State's decision letter granting permission, it is important not to confuse the two roles.
20. Paragraph 9, which refers to the proposals of the County Council for replacement sites, seems to me clearly directed to its intentions as developer. Further, the word "commends" is wholly inapt for the imposition of a legal requirement. The Secretary of State was expecting the council as developer to take note of the inspector's preferences. Possibly, if it had gone ahead with site 11 regardless, it might have been subject to judicial review in relation to that decision. However, the history makes clear that the council as developer did have proper regard to the inspector's preferences, but also to other practical constraints.
21. On the other hand, the formal grant of planning permission and the imposition of conditions comes at the end of the decision letter. That is the part which defines the parameters of the council's function as planning authority. The condition itself is quite clear. It requires a scheme on one of the identified sites, but does not impose, expressly or implicitly, any preference between them. Although the Secretary of State did not adopt the precise wording used by the inspector, he made clear that the purpose was the same, namely to ensure that "there was no overall harm to the ecology of the area". As Mr Hockman accepts for the applicant, it is not the normal function of a planning condition to seek to achieve a planning gain going beyond what is needed to offset the adverse effects of the development. On the basis of the inspector's earlier conclusions, which I have already read, it was clear that this objective could be achieved by any of the sites (other possibly than site 11).
22. In my view, in those circumstances, the county planning officer was right to advise the committees that the acceptability in principle of site 7 had been settled by the Secretary of State's decision and that there was no need to consider the respective merits of the other sites, even if they had been available. I should add that it is very unclear to me what the reconsideration required by the judge was expected to achieve in practice. The practical considerations which led the council to regard site 7 as the only real alternative within the required timescale, seem to me entirely reasonable.
23. I would accordingly allow the appeal on this ground.

Time limit

24. The planning permission was dated 21 October 1998. The amended details were submitted in April 2002, more than three years later. It was argued before Mr Justice Burton and before us that this meant that the submission was outside the time limit imposed by Section 92 of the Town and Country Planning Act 1990 which, it is said, imposes a three year time limit for that submission. The relevant part of Section 92 reads as follows:

"Outline planning permission

92 (1) In this section and section 92 'outline planning permission' means planning permission granted in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority or the Secretary of State of matters not particularised in the application ('reserved matters').

(2) Subject to the following provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions to the effect -

(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of three years beginning with the date of the grant of outline planning permission; and

(b) that the development to which the permission relates must be begun not later than -

(i) the expiration of five years from the date of the grant of outline planning permission; or

(ii) if later, the expiration of two years from the final approval of the reserved matters or, in the case of approval on different dates, the final approval of the last such matter to be approved."

That section follows Section 91 which applies to planning permissions generally and imposes a requirement that the development must be began within five years.

25. I was surprised to find this argument being advanced in relation to provisions which were first introduced over 30 years ago in the Town and Country Planning Act 1968. If it had any validity, one would have expected this argument to have arisen before. However, in my view, it does not. Sub-section (1), which I have read, makes clear that the definition of "reserved matters" is to be looked at, not in the abstract, but with specific reference to the provisions of the relevant development order. The development order is made under Section 59 of the Act and provides a framework for the grant of planning permissions by the authority. The relevant order for our purposes is the Town and Country Planning (General Development Procedure) Order 1995. Article 3 of that provides for "applications for outline planning permission". Article 3 (1) says:

"Where an application is made to the local planning authority for outline planning permission, the authority may grant permission subject to a condition specifying reserved matters for the authority's subsequent approval."

Article 1 of the Order contains the definitions. "Outline planning permission" is defined as -

"a planning permission for the erection of a building, which is granted subject to a condition requiring the subsequent approval of the local planning authority with respect to one or more reserved matters;"

"Reserved matters" are defined in relation to an outline planning permission as meaning -

"any of the following matters in respect of which details have not been given in the application, namely -

(a) siting,

(b) design,

(c) external appearance,

(d) means of access,

(e) the landscaping of the site."

26. So, the reserved matters are essential components of a building development, which, as a concession, do not need to be particularised at the time of the original application; but, on the other hand, there is a requirement that those details must be put in within three years of the grant of permission. Those matters, to my mind, have nothing to do with the condition here in issue, which does not relate to a reserved matter as defined, but is concerned with an off-site mitigation measure imposed by the Secretary of State. Accordingly the permission, in my view, is clearly subject only to the five-year time limit imposed by Section 91. Mr Justice Burton was correct on this issue.

Conclusion

27. Finally I should revert to the reconsideration made by the council in February 2003. The applicant's advisers were well aware that there was to be that reconsideration and they made comments in advance of the committee meeting. As far as one can see, the report before the council met the objections which Mr Justice Ouseley found to the previous consideration, since the respective merits of the five sites were clearly put before the committee for consideration, but the same decision was reached.
28. On 6 March, following that decision, the solicitor to the county council wrote to the applicant's advisers commenting on that decision. The letter referred to the expedition needed in the case and the fact that it would expire under the five-year time limit in October 2003. The solicitor wrote:

"If you intend to challenge the further decision, it seems to us that the best course of action is for the Court of Appeal to consider both decisions. The Court has all the powers of the lower court under CPR Part 52 rule 10. In so stating we should make it clear that we do not consider that you have good grounds to challenge the further decision.

However, if you persist in making such a challenge, then in the interests of dealing with challenges to the first and second decision expeditiously and at a reasonable cost we propose that you issue your application for judicial review of the further decision as soon as possible and we shall support any application by you to have this matter dealt with by the Court of Appeal under CPR Part 52 rule 10 ..... "

The letter added that if there was any delay in bringing a challenge to the further decision the council would oppose permission on those grounds. That seems to me to have been an eminently sensible proposal. Unfortunately there was no response to it from the applicant's solicitors; and nothing was done either to put the council's mind at rest that there was to be no challenge or, on the other hand, to set in train a challenge.

29. Mr Hockman before us was unable to provide any satisfactory explanation. Certainly, he did not attempt to excuse the lack of any response to that letter. Furthermore it is not even clear whether the Legal Services Commission, who are funding this litigation, were informed of the up-to-date position or of the council's proposal.
30. In my view this is a wholly unacceptable state of affairs, particularly when one is concerned, on the one hand, with substantial expenditure of public money on legal costs and, on the other, with a project of major importance to the traffic planning of Winchester. I would invite the Legal Services Commission to look into the matter so far as it affects their interests. So far as this court is concerned, if I had agreed with Mr Justice Ouseley's conclusions, I would have regarded it in any event as overtaken by the recent reconsideration. The failure of the applicant to take any steps to challenge the recent decision in time for it to be brought before this court, would, in my view, be a failure to act promptly and would have precluded any challenge to that decision.
31. For those reasons I would allow the appeal.
32. MR JUSTICE NELSON: I agree the appeal should be allowed for the reasons given by my Lord, Lord Justice Carnwath.
33. As to the duties of publicly funded parties, I would add there is a continuing obligation to report progress of proceedings to the Legal Services Commission both by virtue of CPR 1.3 whereby the parties are required to help the court to further the overriding objective and under the Civil Legal Aid Act (General Regulations) 1989, as amended. The obligation to assist the court to deal with the case justly, including saving expense, and to deal with the case proportionately requires that a publicly funded party should keep the Legal Services Commission informed of any information which may be relevant to the continuance of his or her certificate or contract. There is a specific obligation under Regulation 70 of the Regulations placed upon the assisted person's solicitor to -

"notify the area director of any information which comes to his knowledge and which he considers may be relevant to the determination of any application or the continuance of any certificate or contract."

34. The letter of 6 March 2003 from Hampshire County Council clearly demanded a reply. It should also have been sent to the Legal Services Commission or its contents made known to the Commission so that the funding of this litigation and its future conduct could be considered.
35. LORD JUSTICE BROOKE: I agree with both judgments. I share the concerns that have been expressed by the two other members of the Court of the conduct of Miss Murray's case with the considerable support of public funds during the last two months. I do not propose to say much more on this topic than what I said to Mr Hockman in the presence of his instructing solicitor during the course of the hearing.
36. These judgments must be sent both to the Legal Services Commission and to the costs judge whose duty it will be to assess the costs payable to the appellant's solicitors from 6 March 2003 onwards.
37. I share the view of Lord Justice Carnwath that the council's decision of 26 February 2003 totally changed the position. We do not know what the Legal Services Commission was told about the effect of the county council's open letter dated 6 March 2003. This will be a matter which the Commission and the costs judge will need to consider. If the appellant wished, on advice, to challenge the validity of the 26 February decision, too, I have no doubt that this court, if alerted promptly, could have so managed that challenge that it could have heard all the issues relating to all these decisions before the beginning of the long vacation so that everyone would know where they stood. As it was, with time for implementing the very important 1998 planning permission due to run out in October, the appellant's solicitors appeared to be content to resist this appeal first and then, if this resistance was successful, to consider mounting a challenge at High Court level to the validity of the third decision which, no doubt, could not possibly have been accommodated satisfactorily either by the High Court or by this Court before time ran out in October.
38. Although this was never a case appropriate for mediation, the philosophy underpinning the judgment of Lord Woolf CJ in The Queen on the Application of Cowl v Plymouth City Council [2001] EWCACiv 1935, [2002] 1 WLR 803 must also be taken into account in relation to the case management of this type of very expensive public law litigation involving a dispute between a public authority and members of the public who are affected by its actions. Lord Woolf CJ said in Cowl that insufficient attention was being paid to the paramount importance of saving costs and reducing delay where practicable.
39. In that case Alternative Dispute Resolution was the obvious option. In the present case ever since the council's decision of 26 February 2003 imaginative case management was the obvious option. But this court cannot manage cases imaginatively if a party's solicitor fails to respond at all to a very sensible letter written to it by the other side concerning the future management of their dispute, and if neither party invite this court to consider the matter and give appropriate case management directions.
40. The appeal is therefore allowed.
Appeal allowed with a minute of order to be lodged with court.