England and Wales High Court (Administrative Court) Decisions

1. THE DEPUTY JUDGE: On 12th February 1997 the First Respondent granted planning permission subject to conditions for the change of use of the East Norwich Inn, 47 Old Road, Acle, from a hotel to an 8 bed hostel and 8 bed group home with staff flats, and 8 one-bedroom flats. The applicants for planning permission were the Second and Third Respondents, St Matthew Society and Peddars Way Housing Association. The Society is a registered charity whose main purpose is the provision of supported housing in East Anglia and the East Midlands for single lonely people, and the Association manages a large amount of housing accommodation in Norfolk for both general and special needs. Their planning application attracted a substantial number of objections from local residents. There was, as it was put in the officers' report to the Council sub-committee that resolved to grant planning permission,

2. On 22nd April leave was given to the Applicants, who are three of the objecting local residents, to apply for judicial review to quash the decision to grant planning permission. Three grounds of challenge were raised, but only two of these are now being pursued. They focus on two particular sentences in the officers' report which, the Applicants claim, disclose errors of law. The sentences are these:

3. The Applicants say that, on the contrary, these matters were material considerations which the Council were bound to take into account under section 70(2) of the Town and Country Planning Act 1990; that the Council must be taken to have based their decision upon the officers' advice as to their materiality; and accordingly that their decision was unlawful.

4. In a report which extended to some 17 pages, the officers summarised the comments of consultees and identified the various points made by those individuals who had objected to the proposal and those who supported it. Among the points of objection that were identified in paragraph 3.2 of the report were the following:

5. The report went on to deal with the site and the nature of the proposed development, and then, in the main section entitled "Appraisal", it addressed the issues in the case. It discussed what it identified as the four principal issues - planning policy, "site performance", design, and the effect on adjoining occupiers in terms of overlooking. The report then said this at para 8.28:

6. The paragraph continued with a further seven numbered points. Paragraph 8.29 then stated:

7. Mr Barry Payton, who appears for the Applicants, advances a simple argument. He refers to two pages of the Encyclopaedia of Planning Law, on which are set out two well-known statements of principle on the question of materiality. The first is that of Cooke J in Stringer v Minister of Housing and Local Government [1971] 1 All ER 65 at 77:

8. The second extract is from the speech of Lord Scarman in Westminster City Council v Great Portland Estates Plc [1985] 1 AC 661 at 670 dealing with the relevance of personal circumstances. It includes the following:

9. So, Mr Payton says, the character of the people likely to be resident in the proposed development is a material consideration, as is the concern of parents about the safety of their children. The weight to be accorded to them would be a matter for the Council (and on this Mr Payton refers to Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759), but in ignoring them altogether the Council has erred in law.

10. For the Respondent Council Mr Robin Barratt QC says, firstly, that the report was quite right to say that the nature, personal circumstances or character of individual people are not land use planning issues. The use for which consent was sought was essentially residential and institutional, and it was that to which the Council had to pay regard in deciding the acceptability of what was proposed, and not the possibility that some particular occupiers might give rise to problems. In approaching the matter in this way, the officers' report was in accordance with East Barnet UDC v British Transport Commission [1962] 2 QB 484, where Lord Parker CJ said, at 491:

11. Mr Barratt refers also to the recent Court of Appeal case of West Midlands Probation Committee v Secretary of State for the Environment (7th November 1997, transcript), which concerned an application for the extension of a bail and probation hostel, the inmates of which had caused disturbance to local residents. After referring to the passage I have just quoted from the East Barnet case, Pill LJ, with whom Hirst and Swinton Thomas LJJ agreed, said;

12. Mr Barratt contrasts the facts in the West Midlands case with those here. There is here no background of disturbing behaviour, and, given the nature of the proposed development there is, he says, nothing to suggest that there is any justification for the concerns of local residents.

13. Mr Barratt's second submission follows on from this. He says that the officers' report was stating a conclusion that the concerns of local residents were unjustified, so that the Council, who would have been well aware of the fears and concerns of local residents, can be taken to have based themselves on this conclusion.

14. Thirdly, Mr Barratt argues that, if the Council were in error as claimed by the Applicants, relief should as a matter of discretion be denied because there is nothing to suggest that the apprehensions of local residents would have been sufficient to persuade them to refuse permission, and thus there would be no real possibility that they would reach a different conclusion if the matter were remitted to them. He relies on Bolton Metropolitan Borough Council v Secretary of State for the Environment (1990) 61 P & CR 343 and in particular on the statement of principles (to which I will refer later) by Glidewell LJ at 353.

15. The Council accept that in one respect the advice given in the officers' report was wrong in law. This was the suggestion that increased car trips resulting from parents' concerns about the safety of their children was not a material planning consideration. Following the decision of the sub-committee to grant planning permission, the Applicants' solicitors wrote to the Council raising the points that are now argued in these proceedings. As a result the Council's Director of Development reported to the sub-committee at its meeting on 12th March 1997 that his advice should have been that the question of increased journeys by parents was capable of being a material consideration but that he considered that no weight should be attached to it. The sub-committee was invited to consider whether, if this advice had been given at its meeting on 12th February, its decision to grant permission would have been different, so that consideration might be given to the possibility of revoking the permission. It resolved that its decision would not have been different. Mr Barratt invites me to have regard to this resolution for the purpose of deciding whether as a matter of discretion relief should be granted. Again he relies on Bolton Metropolitan Borough Council v Secretary of State for the Environment .

16. Miss Natalie Lieven, who appears for the Second and Third Respondents, argues that a distinction must be drawn between, on the one hand, the concerns or fears of local residents and, on the other, the nature and characteristics of the proposed residents and their anti-social behaviour. Concerns and fears, she says, would not be sufficient to amount to a material planning consideration, and unless, therefore, there was something to suggest that such concerns were justified the Council would not have erred in leaving them out of account. She places reliance on the West Midlands case, and in particular on a passage to which Mr Barratt had referred in which Pill LJ set out the following propositions which, he said, emerged from the authorities:

17. On the question of discretion Miss Lieven refers to an affidavit sworn by Mr J P Miller, the Chief Executive of St Matthew Society, in which he gives details about the Society and describes the operation of its homes. Miss Lieven says that the evidence overwhelmingly suggests that there were no grounds for the objectors' fears and therefore that the committee would have come to the same conclusion even if differently advised as to the materiality of the objection. Relief, she says, should therefore be refused.

18. It is in my judgment clear from the passages I have quoted from the officers' report that the sub-committee was being advised to leave out of account in determining whether to grant permission the concerns of objectors that occupants of the development would pose a security risk to local residents, children and property. Paragraph 8.28 begins by referring to the letters of objection and then says:

19. In this respect, therefore, the advice given to the Council was erroneous. But the key question is whether that misdirection has resulted in an invalid decision on the part of the Council. Although the officers' report was advising the Council that the concerns of local residents about the nature and character of potential occupants of the development were not land use planning issues, it was also saying, as I read it, that, if such concerns were to be taken into account, they would not count against the proposal. The report had concluded in paragraph 8.5 that the proposal accorded with planning policy relating to residential institutions and similar proposals. It had noted in paragraph 6.2 the nature of the St Matthew Society elements of the development, as follows:

20. Then, having stated that "the nature, personal circumstances or character of individual people are not land use planning considerations," the report went on :

21. Thus it appears that the advice being tendered to the Council was that, even if the concerns of the local residents about the potential occupants were taken into account, there was nothing in this consideration to count against the proposal . If the Council followed this advice I do not think it can be said that they committed the error that is alleged against them - that they left those concerns out of account. The case for the Applicants depends, it seems to me, on the proposition that the Council must be taken to have accepted the advice of the officers that those concerns were immaterial and thereupon to have dismissed them from further consideration, without going further, as the officers themselves had done, and considered what the decision would be if the concerns were to be taken into account. If they did take that further step, their decision would clearly be free of the criticism that is levelled against it. It is for the Applicants to show that the Council made the error that is alleged against them, and, while it is reasonable to infer that the Council accepted the advice about materiality, I see no reason to conclude that they stopped short at that point and did not go on, as the officers had done, to consider the concerns of local residents and whether that would affect the decision. The councillors had before them a fair summary of those concerns and advice that addressed itself to them. The Applicants have not in my judgment shown that they left those matters out of account.

22. It is in the circumstances unnecessary for me to consider the distinction which Miss Lieven seeks to draw between the matters about which local residents are concerned and the concerns themselves. Whether unjustified concerns can amount to a material planning consideration is a question on which there is apparent conflict between two Court of Appeal decisions - Gateshead Metropolitan Borough Council v Secretary of State for the Environment (1994) 71 P & CR 350 and Newport County Borough Council v Secretary of State for Wales (18th June 1977, transcript). The conflict was not resolved by the Court's decision in the West Midlands case, upon which reliance was placed, and the propositions stated by Pill LJ, which I have quoted, do not purport to do so. In the present case, since, as I conclude, the Applicants have failed to establish that the Council left out of account either the concerns of local residents or the question whether such concerns were justified, there is no need for me to decide which of the conflicting decisions I ought to follow, and I do not do so.

23. This brings me to the error which it is conceded on the part of the Council that they did commit - in treating as immaterial the question of increased car trips resulting from parents concerns about the safety of their children. Such a matter is clearly capable of being a material consideration for the purposes of section 70(2). Whether the error on the part of the Council renders their decision invalid, however, is in my judgment properly to be considered in the light of the principles set out by Glidewell LJ in the Bolton case. (It should be noted, in view of the basis upon which the Bolton case was cited in argument, that the first 6 of the 7 principles are concerned with validity, and it is only the last that is concerned with discretion.) They are these:

24. In the present case I find myself wholly unable to conclude (in the terms of principle 6) that there is a real possibility that if the question of increased car trips had been considered by the Council it would have made a difference to their decision. Unsurprisingly there appears to have been no material before them as to the number of possible additional trips that might be occasioned or as to the effect that any such additional trips might have on congestion or safety. No arguments on the point were addressed to me by the Applicants, whose challenge focussed on other matters. In the light of these considerations, therefore, I do not think that the admitted error on the Council's part rendered their decision invalid.

25. The Applicants have accordingly failed to make out their case on invalidity. It is thus unnecessary for me to consider the question of discretion, and I do not do so on a contingent basis. The considerations affecting the exercise of discretion would, I believe, be different depending on whether the Council's duty was to take into account the concerns of local residents even though they might be unjustified (see the Newport case) or whether they were obliged to consider those concerns only to the extent that they were justified (see the Gateshead case), and it has not been necessary for me to come to a conclusion on that particular point.

26. The application is refused.

27. MISS DAVIES: Could your Lordship make an order for the first respondent's costs?

28. MISS LIEVEN: My Lord, Miss Davies appears for the first respondent, Broadland District Council. Mr Payton appears for the applicant. I appear, as your Lordship may remember, for the second and third respondents. My Lord, I do ask for my costs in this case as well. Can I briefly explain why? My Lords, in my submission my clients had to be here before your Lordship because of the nature of the applicant's arguments. It was necessary that your Lordship be made fully aware of the true nature, in particular of the second respondent's operations and of the management of the hostel in question. As it was, your Lordship did not need to address the question of discretion for the reasons your Lordship has outlined in your judgment.

29. However, in my submission there must have been a serious possibility, to put it no higher, that your Lordship would have to consider discretion. Your Lordship found that the first respondent had erred in the advice it gave to its members and, of course, your Lordship will remember that the first respondent accepted, in respect of the traffic issues, that it had erred, and in those circumstances, my Lord, it was extremely likely that your Lordship would have to consider, at least gently, the question of discretion and at that point the nature of what my clients were doing and the fact that the applicant's fears were wholly ungrounded in the facts of the case, would have become paramount, and in those circumstances, my Lord, any responsible and sensible housing association in my clients position would have needed to have attended.

30. My Lord, your Lordship will, of course, remember that the principles of Bolton v. The Secretary of State do not apply in this case because it is not a section 288 application, and the fundamental principle in Bolton v. The Secretary of State , that is the first respondent is entitled to his costs, does not apply in a judicial review where the first respondent is simply a local planning authority. In judicial review your Lordship will be aware that the general principle is one set of respondent's costs, but there is no judgment as clear or authorative as that in Bolton.

31. So, my Lord, my primary submission would be that because my client had a very separate interest here and because of the nature of the arguments, your Lordship should, as an exception, award two sets of costs.

32. If your Lordship is not minded to do that, and I do understand the applicants are individuals and probably are not well off - obviously Mr Payton will make submissions - I would ask your Lordship to order one set of costs but to be split 50 per cent between the first respondent and the second and third respondents. The second and third respondents always argued together and have effectively incurred one set of costs between them.

33. MR PAYTON: My Lord, I find myself at a disadvantage because I have not had an opportunity of seeing the judgment handed down. In fact I asked the learned associate earlier this morning if there was a judgment available and ----

34. THE DEPUTY JUDGE: I cannot understand that. It went to the Crown Office in good time last week and it should have reached you.

35. MISS LIEVEN: My Lord, can I say in support of Mr Payton that I did not see the judgment either, but I have seen it thanks to Miss Davies handing it to me this morning.

36. THE DEPUTY JUDGE: Clearly something has happened.

37. MR PAYTON: I had a telephone call from from a young lady called Jackie in the Crown Office on Thursday to tell me that judgment would be at 9.45am today. I asked if there were to be a judgment handed down and she did not know.

38. THE DEPUTY JUDGE: Mr Payton, you may not be able to deal with the application of costs until you have done so. But can I say what I am minded to do, and you may decide that you do not need to see the judgment before you address me. I am minded to award the first respondent his costs, but only one set of costs, no costs to the second respondent.

39. MR PAYTON: My Lord, that makes it much easier, and in fact something that one of my learned friends said has given me a clue.

40. THE DEPUTY JUDGE: Would you resist that order?

41. MR PAYTON: No, I cannot. But I think I am duty bound to make this clear. I gather from something that one of my learned friends have said, who has read the judgment, that your Lordship was not refusing merely on the grounds of discretion, (i.e.) that the council would make the same decision anyway, which of course cuts out an application that I might have made in those circumstances. So on the assumption that I discern correctly that your Lordship has dismissed it on the merits, then I am grateful to be burdened only with one set of costs.

42. The application is then refused. The applicant will pay the first respondent's costs.