QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SAUNDERS||Claimant|
|TENDRING DISTRICT COUNCIL||Defendant|
|BARRETT HOMES LIMITED||Interested Party|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
MR R TAYLOR (instructed by Tendring District Council, Essex CO16 9AJ) appeared on behalf of the Defendant
MR T STRAKER QC and MR R WHITE appeared on behalf of the Interested Party
Crown Copyright ©
"HSE has concluded the risk would be sufficiently low that it does not wish to advise against the grant of planning permission on grounds of safety."
"There are no illustrative plans although you envisage a traditional development of 50 dwellings comprising a mixture of houses and bungalows as well as an amenity open space. I have considered the appeal on this basis."
"I have taken into account all other matters raised at the hearing and in the representations including the proximity of the Carless Solvent works to the west. In this regard I note that the Health and Safety Executive does not advise against the development and I heard nothing to cause me to depart from that view."
"The ... HSE is a statutory consultee for certain developments within the Consultation Distance (CD) of major hazard installations, complexes and pipelines.
The individual consultation has been considered using the details provided by you and HSE's assessment methodology. Consequently HSE does not advise on health and safety grounds, against the granting of planning permission in this case.
I must emphasise that this does not mean that risks at the proposed development are negligible. If the site was a 'green field', then HSE would have advised against the granting of planning permission. In principle, HSE would encourage Planning Authorities to use the opportunity offered by redevelopments to decrease the numbers of people within the CD. However, this decision to not advise against the granting of planning permission in this case has taken into account the existing outline planning permission for housing development at the majority of the site."
"The application site lies on the edge of Parkeston Village with vehicular access from Una Road and Edward Street which joins Una Road before Una Road connects to the local highway network. Both Una Road and Edward Street are subject to heavy on street parking and Edward Street has a restricted carriageway width and right angled bend.
The site also lies within the Consultation Distance of a Major Hazardous Installation which lies to the north of the application site.
The proposal falls to be considered under Policies BE1 and BE6 of the Essex and Southend on Sea Replacement Structure Plan and Policies TH3, TE14 TT1 and TD1 of the Tendring District Local plan.
As a result of a formal consultation under Circular 04/00, whilst the Health and Safety Executive does not specifically advise against the grant of planning permission it 'emphasises that it does not mean that the risks at the proposed development are negligible'.
In the opinion of the local planning authority the proposed erection of 77 dwellings on this site would be out of character with the area and in particular the activity and traffic generated by it would adversely affect the safety and free flow of traffic on Una Road and Edward Street to the detriment of the amenities of the occupiers of existing residential properties.
Furthermore, in view of the stated risk to the health and safety of potential occupiers together with the above highway concerns, it is considered that the proposal would adversely affect the amenity of those residents contrary to Structure Plan Plan Policy BE6 and Local Plan Policy TE14."
"Whilst no Specific number of dwellings was sought from representations made by the then appellants the Inspector made his decision based on a scheme of 50 dwellings."
"Accordingly there currently exist an extant outline planning permission ... that embraces most of the current application site subject of appeal."
"The council object to the development as set out in the decision notes [sic] on grounds of:
1) The adverse character of the development within the locality
2) The adverse character and effect upon amenities by the development, with particular regard to the activity and traffic generated by the development,
3) Its adverse effect upon the safety and adverse effect upon potential occupants in regard to highway, health and safety risks.
In regard to the Development Plan provisions, the appeal site lies within the housing settlement limit for Parkeston ...
The site has an 'edge of settlement' location on previously developed land. Under policy CS1 of the ESRP [Essex and Southend Replacement Structure Plan], it is an objective to achieve urban regeneration with existing urban areas [sic].
Accordingly (and also taking into account the [extant] outline planning permission) it is not disputed that the land may be properly considered as being appropriate in principle for residential development with the general location criteria of the Adopted Development Plans. The above policies are then specifically caveated to ensure development permitted is of a scale and nature compatible with the site and surroundings to safeguard the physical character of the area and to minimise adverse affects [sic] upon the community."
Various development plan policies are then referred to, and the statement continues:
"In regard to other particular aspects of the council's objection the decision-maker must ensure:
Policy TT1: proposals are considered in relation to road hierarchy etc ... and to the effects on the transport system including the physical and environmental capacity to accommodation the traffic generated.
Policy TE14 and BE6: to prudently control the types of development permitted in the vicinity of Hazardous Installation (in this case the Carless Refinery Works to the north, north west of the site), and not to permit development within the vicinity of such installation where this would cause material harm to the health and safety of people."
"Also set within this same area [of] Parkeston is the long established Carless Refinery, its nearest installation being set only some 130 metres from the nearest site boundary. Much of that site is separated from the Refinery by a small ridge running east/west, with the Refinery to the north and the proposed development to the south.
The Refinery is a notifiable Hazardous Installation and the site falls wholly within the notifiable safeguarding area wherein new development is required to be referred to the [HSE].
Of particular note is the installation of a large chemical storage tank set 240 metres from dwellings [at] the end of Edward Street and near the brow of the ridge.
The comments received from the [HSE] stated it did not advise, on health and safety grounds against the grant of planning permission in this case.
However the Council was very mindful of the qualification of that advice given.
The HSE stated that
'if the site was Greenfield then it would have advised against the granting of planning permission'.
The HSE also stated in giving its advice that
'this does not mean that the risks of the proposed development are negligible'.
It also indicated that;
'In principle HSE would encourage planning authorities to use the opportunity offered by redevelopment to decrease the number of people in the CD'."
The statement continued:
"It must be appreciated that the extant outline planning permission (to which the HSE took into account in weighing its response) did not agree or specify a stated number of dwellings. That is a reserved matter.
In addition, when the outline development was previously examined in detail by an Inspector, the decision was based upon about 50 dwellings being built on the 1.9 hectare site. The current scheme is for 77 dwellings.
The Council in weighing the greater public interest and safety including potential crime and disorder ... and safety of a population, as it is required to do, is very mindful that the site's development is not without risk, and that the HSE was not probably in benefit of that consideration.
Part of the other material considerations in regard to this issue must be the suitability of the means of minimising such risks in the event of an incident where people may need to be evacuated, rescued or treated. In this location, as set out below, it is considered that due to the road network and proposed layout the scheme is deficient ...
Accordingly in considering the Development Plan provisions, the Council has correctly taken a precautionary approach and determined that with the qualified advice of the HSE the scheme presents a risk that it is not satisfied is minimised by the nature and intensity of development proposed."
The statement then dealt with highway considerations.
"... whilst in principle the Highway Authority has not raised objection to the scheme meeting basic highway safety and parking aspects in respect of Una and Edward Street the planning authority in its judgement (aided by its detailed inspection of the highway and taking account of the community's representatives prior to determination), consider the Highways Authority's observation, fail to take into account the environmental capacity Policy TT1 and T3. These policies specifically require that new development should not result in a deterioration of traffic conditions within surrounding areas and the need to create attractive environment for people to live in. The Council submits that the development by reason of its scale and the nature and character of the existing highways would if permitted create such conditions contrary to the policy and objectives of Central Government in PPG3.
Secondly, referring back to the HSE comments, and considering serving the community in the event of an emergency, because of the physical limitations of the carriageways, their cul de sac design they are not conducive to easy access for evacuation of the development, particularly the northern sector which can only be accessed via Edward Street, with its recognised deficiencies.
Thus taking into account the physical limitations of the highway network and the intensity of development proposed, the scheme would not enhance the amenity or character of the area, nor would it leave it unaffected, but it would adversely effect [sic] those facets to the detriment of the community."
"At 30 dwellings to the hectare (57 dwellings) the site would still meet the government's general minimum level of hoped for reuse of residential development nor is significantly different from the 50 dwellings originally envisaged in the grant of outline consent."
"... the scale and nature of the development would if permitted be detrimental to the character of the area and the amenities and safety of present and future residents."
(a) The defendant was not objecting to residential development on the site in principle. It said so in terms and specifically acknowledged that the 2002 outline planning permission covered most of the site.
(b) The defendant was objecting to the number of dwellings proposed (77) and was comparing that number with the 50 dwellings which had been the basis on which the inspector had considered the application for outline planning permission in 1993, even though the statement acknowledged that the inspector had not imposed any limit on the number of dwellings in the outline permission that he granted.
(c) The defendant was objecting to the "scale" or the "intensity" of the proposed development on three grounds, two of which are relevant for present purposes. Those two grounds were:
(i) the risk posed by the Carless site in view of the HSE's advice that if the site was a greenfield site it would have advised against the granting of planning permission and would encourage planning authorities to use the opportunity offered by redevelopment to decrease the number of people in the CD. Part of this concern was based upon the alleged inadequacy of the access arrangements if there was to be a need for evacuation in the event of an incident ("safety/evacuation").
(ii) The defendant's assessment, aided by its two site inspections, that the environmental capacity of Una Road and Edward Street would be exceeded and that a proposal for 77 dwellings would therefore be detrimental to the amenities of residents in those roads ("environmental capacity").
(iii) The defendant relied upon policies T14 and BE6 in the Tendring District Local Plan in support of its safety/evacuation objection and upon policy TT1 in support of its environmental capacity objection.
"The executive has previously commented that 'Health and Safety Executive does not advise on health and safety grounds against the grant of planning permission'. It further commented that 'this does not mean that risks of the proposed development are negligible, however, the decision not to advise against the granting of planning permission in this case has taken into account the existing outline planning permission for housing development at the majority of the site."
"Could be problems in access/egress in event of emergencies.
Una Road is not suitable as only access to estate."
"It is considered that the principal planning issues to be taken into account are:
1) Housing policy and planning history
2) Highway and parking aspects
3) Private and public amenity aspects
4) Other technical considerations
5) Design and layout."
"Considerable concern has been expressed by the local community with regard to these matters, specially relating to there being only 1 principal access (Una Road) serving the existing dwellings and the 77 new properties together with the limited width of Una Road and Edward Street due to heavy on street parking.
The Highway Authority has not raised objection in principle to the capacity of the streets to serve the development. In respect of the current scheme this remains the case although as previously it seeks a contribution to traffic calming improvements in Station Road. In regard to the detailed layout the scheme has been modified to meet its original objections.
In respect of parking the Local Plan guidelines indicate a level of 148 spaces being required. The scheme provides 140 spaces, together with 20 unallocated spaces on a separate planning submission. In addition the roads are oversized, (5.5 metres) compared to 4.8 metres to facilitate casual on street parking.
It is therefore considered that the scheme meets basic highway safety and parking aspects."
"The site and locality has been the subject of two site visits by the Committee in the last six months (the last with a representative from the County Highways Department).
It remains your officer's advice to grant approval subject to conditions."
(1) Although the report refers to the fact that there was a refusal of planning permission in February 2003 and to the fact that there was an appeal pending, it does not set out the grounds of refusal and fails to inform members that those grounds were amplified by the defendant itself in a statement submitted as part of the appeal process.
(2) In consequence, the report does not mention, much less does it consider, the defendant's safety/evacuation and environmental capacity objections to the erection of 77 dwellings on the site as set out in the statement.
(3) In relation to the defendant's safety/evacuation objection, it is true that the HSE letter is summarised, but not merely are the issues raised by the defendant in its statement not discussed, the passages in the HSE letter upon which the defendant had particularly relied in its statement -- that the HSE would have advised against the grant of planning permission if this was a greenfield site and would encourage authorities to use the opportunity offered by redevelopment to reduce the number of people in the CD -- were for some unaccountable reason omitted from the summary of the HES's view.
(4) The policies relied upon by the defendant in support of its safety/evacuation objection, TE14 and BE6, are not even mentioned in the report.
(5) Although the report does refer to the parish council's and local residents' concerns in relation to evacuation, it fails to mention the fact that those very concerns were raised by the defendant itself in the statement.
(6) The environmental capacity policy TT1 is mentioned, but there is no indication that the defendant relied upon it in the statement and no indication that the concerns raised in the petition as to the adequacy of Una Road and Edward Street were accepted by the defendant as being justified in terms of the environmental capacity (as opposed to the highway capacity) of those culs-de-sac.
(7) While the report refers to the fact that the site and locality had been the subject of two site visits by the committee in the last six months, it fails to mention the fact that those two site visits had led the committee to refuse planning permission for 77 dwellings on the site on safety/evacuation and environmental capacity grounds.
"The purpose of this report is to provide Members with other relevant background information regarding those applications and in particular to make them aware of Counsel's advice regarding the [February refusal]."
"The principle of the residential development of the site has therefore been accepted."
"The developer has made it clear that any refusal would be appealed against. On 23 April 2003, the fact that an appeal had been lodged with the Planning Inspectorate against the Council's refusal of the appeal application was formally reported in writing to the DCC."
"Counsel advised that the Council's stated reasons for refusal do not justify a refusal and that, if the refusal is appealed against, there is a 'high likelihood of a costs award against the Council'. When your officers asked Counsel about the letter from the HSE, Counsel noted that the HSE, whilst somewhat equivocal in their response, did 'not advise against the granting of planning permission' and that the highway authority had no objection. Counsel advised that the HSE letter would carry very little weight at a planning appeal and that the most the Council could properly say on appeal in this regard is that it is not satisfied that there is no risk to health and safety. Counsel also advised officers that they were obliged to advise Members of the costs risk and of the substance of Counsel's advice."
The confidential report continues:
"Costs are only awarded against a party to an appeal where that party has behaved in a manner which in planning terms is defined as unreasonable within the meaning of DOE Circular 8/93. The fact that Counsel has advised that there is high likelihood of an award of costs against the Council means, therefore, that he is firmly of the view that the Council's refusal of the appeal application was seriously flawed."
"Having appealed against the Council's refusal of the appeal application, the developer has formally elected for its appeal to be determined by written representations, primarily in the interests of speed. When an appeal is dealt with by written representations, normally an award of costs cannot be claimed. However, experience shows that, if the Planning Inspectorate considers that there is significant public interest (as indeed there was in this case), then the Inspectorate could well decide to change the process to that of a public inquiry. If there is a public inquiry, the Council will be subject to a substantial risk of a substantial award of costs against it and (potentially) strong criticism of its decision to refuse the appeal decision against a background where (a) it had previously granted permission, (b) the fact that the site is within the Parkeston settlement limits in the local plan and (c) the lack of any formal objection from the highway authority, statutory consultees or the HSE. A developer's costs at a public inquiry are often substantial and can run into tens of thousands of pounds.
The current applications ... before the Council are very similar to the appeal application which was recently refused. Your officers have no alternative but to advise members that officers continue to be firmly of the view that there is no sustainable justification for refusing the current applications. Clearly, if the current applications were to be approved, then it is likely that the appeal would be withdrawn and the Council would no longer be at the risk of an award of costs against it."
The committee approved both applications.
(1) Although the report sets out the grounds of refusal and therefore refers to the policies that are relied upon in the grounds, including TT1, TE14 and BE6, it does not, save by way of summarising counsel's advice, discuss or deal with the merits of those grounds.
(2) Counsel had been instructed to advise on the merits of the reasons for refusal on 7th March. He advised in conference on 13th March. There was no written advice, hence the need for a summary of counsel's advice in the report.
(3) The defendant's statement was not sent to the Inspectorate until 1st May, so it was not available to counsel when he advised in conference.
(4) It is not surprising therefore that counsel's advice in conference, whilst it dealt in general terms with the reliance that could be placed (in counsel's view) upon the letter from the HSE, did not deal with the way in which the defendant was advancing its safety/evacuation and environmental capacity objections. The aspects of the HSE's letter relied upon by the defendant were not dealt with in terms, and the issues of evacuation and environmental capacity were not addressed at all.
"(a) whether, in view of the proximity of the site to a major hazardous installation, the proposal would place occupiers of some of the proposed dwellings at unacceptable risk.
(b) the impact of traffic generated by the proposal on the safety and free flow of traffic on Una Road and Edward Street, and
(c) the impact of the proposed development on the character of the area."
"7. ... What is clear, however, is that the outline permission reserved for later approval the number of dwellings to be erected on the site. Moreover, the Inspector noted in 1993 that the proposal envisaged at that time a traditional development of 50 dwellings; the illustrative plans indicating a mixture of 1 to 3 bed-roomed houses, and bungalows.
8. By contrast, this appeal proposal envisages some 77 dwellings. While these may be smaller, on average, than those originally envisaged, the overall number of people to be housed on this site would be likely to be greater than envisaged in 1993. In view of HSE's 'in principle' position to encourage LPAs to decrease the numbers of people within CDs, I would have expected HSE to have recommended against the granting of planning permission for the appeal proposals. In the light of the absence of approved details pursuant to the outline application, I would also have expected HSE to indicate those areas of the site which they would wish to see remain undeveloped for housing in an attempt to minimise the risks envisaged. In this respect, increasing housing densities in accordance with guidance in PPG3 could have taken place, while at the same time not increasing the numbers of people living within the CD over and above that envisaged in the original outline application.
9. I am also concerned at the prospect of the difficulties that could arise in the event of properties on the appeal site needing to be evacuated in an emergency at the same time as emergency vehicles needed to gain access to the area, a matter of concern also raised by some local residents."
"I consider the potential for delay to emergency services to be unacceptable. Circumstances in Edward Street are similar, although exacerbated along its first 100m length by the steepness of the gradient down to its junction with Una Road."
"The Council Member's decision to take a precautionary approach to this issue of public safety is entirely understandable. I consider this issue to be so serious as to justify the refusal of the full application for planning permission on this issue alone. I conclude that the proposal would be in conflict with RSP policy BE6, and TDLP policy TE14, and I shall dismiss the appeal."
"While I accept that [the provision of the 20 unallocated parking spaces] would contribute to some reduction in congestion in Una Road, the traffic generated by a further 25 or so dwellings, when compared with the level envisaged at the time of the first approval of the outline planning permission for the site, would tend to militate against that benefit. While not sufficient reason in its own right for a refusal of planning permission it is a further factor which on balance goes against the proposal, and as such conflicts with RSP policy T3."
"While the scale and detailed form of that development has yet to be finalised, the principle of redevelopment for housing has been established."
(1) In deciding whether to grant or refuse the two applications, for approval of details and for full planning permission on 10th June, the committee were obliged to have regard to material considerations.
(2) The defendant's own safety/evacuation and environmental capacity reasons for refusing the application on 11th February were not merely material, but highly material considerations.
(3) Upon the premise (which he did not accept, see below) that the members' reasons for changing the defendant's stance between February and June were those set out in the officer's reports, those reports did not address the defendant's safety/evacuation and environmental capacity objections.
(4) It followed that the committee on 10th June had failed to take those material considerations into account.
(5) Insofar as the defendant's safety objection was dealt with in the confidential report (by reference to counsel's advice as to the weight that he considered could be attributed to the HSE letter), it was procedurally unfair to deal with such a significant part of the planning merits in a confidential report, which was considered whilst the public were excluded under section 100A(4) and paragraph 12 of Schedule 12A to the 1972 Act.
"Any instructions to counsel and any opinion of counsel (whether or not in connection with any proceedings) and any advice received, information obtained or action to be taken in connection with-
(a) any legal proceedings by or against the authority, or
(b) the determination of any matter, affecting the authority, (whether in either case proceedings have been commenced or are in contemplation)."
"The second point taken by [counsel for the claimant] related to the advice actually given. He accepted that part of the advice was legitimate legal advice, namely (1) the council's prospects on appeal if planning permission were refused; (2) the prospect of having to pay costs and (3) the prospect that Mr Stoop might move for judicial review. He submitted that none of the advice as to whether there were sound and clear cut reasons for the refusal was legal advice. The reasons for refusal amounted to planning advice all of which should have been given in public. The council thus had acted unlawfully in tendering such advice in private and Mr Stoop was prejudiced in that a decision vitally affecting his interests was taken following, inter alia, privately given planning advice which he was entitled to see members receive and consider in public and which he ought to have been given in advance so that Mr Powdrill [his planning consultant] could respond to it.
On this issue he (Otton J) had considered in detail the advice as recorded. However, he was satisfied that the advice given went predominantly to the prospects on appeal and to the possibility of an award of costs against the council. There was some advice on the planning issue but it only went to reinforce the views of the officers on the prospect of appeal and its consequent risk as to costs. ...
He had studied the terms in which that advice was given. He was satisfied that the officers had not abused their position. The advice was not improperly couched. He rejected the suggestion that Mr Phillips used language which was meant to and might have frightened the members into changing their minds. In summary the receipt of advice on the prospects of an appeal and costs fell within the statutory provisions. The fact that some planning advice was given did not amount to a material irregularity or flaw the decision. Such advice was a material fact to be taken into account by the committee and it was a reasonable exercise of their discretion to receive the advice in private session."
"Gross floor space cannot in my view be brought within the words 'siting' or 'design' as submitted by Mr Purchas, especially when those words are read with the words 'external appearance', 'means of access' and 'landscaping of the site'. None of these words is appropriate to govern the scale of development in the statutory context. If a planning authority wishes to limit, at the outline stage, the scale of development, it can do so by an appropriate condition. An outline application which specifies the floor area, as this one does, commits those concerned to a development on that scale, subject to minimal changes and to such adjustments as can reasonably be attributed to siting, design and external appearance."