England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		5th November 2004

MR JUSTICE NEWMAN :

1. The claimants seek permission to challenge a decision of the defendant, Salisbury District Council (“the Council”), dated the 27^th February 2004, to grant planning permission to the interested party (“Mr Docking”) for the construction of a dwellinghouse at the rear of Maesmor, 38 Firs Road, Firsdown, Salisbury. The first and second claimants live at 36 Firs Road and the third and fourth claimants live at 34 Firs Road. Mr Docking lives at 38 Firs Road. Pitchford J ordered in the application for permission for an oral hearing with the full hearing to follow should permission be granted.
2. The claim form contains six grounds of challenge, two of which are not now being pursued. The principal ground which has been pursued raises an important issue as to the consequences which should properly flow from a series of procedural irregularities in connection with the application. It is not disputed that the Council's decision is voidable. The argument on this ground has concentrated on whether the Court should exercise its undoubted discretion to quash the decision, having regard to the approach established by a number of cases and, in particular, Main v Swansea City Council (1984) P & CR 26. I propose, having outlined the essential facts, to consider the ground based upon the irregularities first and I shall return, as necessary, to the other grounds which are:

i) a failure to have regard to material considerations relevant to a highway access;

ii) the giving of misleading guidance on tandem development to the planning committee;

iii) a misunderstanding, on the part of the officer giving the report to the planning committee, as to the meaning of PPG3.

Each of (i) to (iii) are contested by the Council

THE ESSENTIAL FACTS

3. On 14^th October 2003, Mr Docking submitted a planning application for a new dwelling at the rear of No. 38 Firs Road. The plan (“the original plan”) submitted in support of the application disclosed a proposal for the construction of a four-bedroom bungalow at the rear of his garden, close to the boundary of the garden of the first and second claimants (“the Pridmores”) at No. 36. No. 36 itself occupies what was once part of the rear garden of No. 38. The parcel of land was transferred to a Mr and Mrs Collins by a deed of gift on 15^th November 1956 when No. 38 was owned and occupied by the father of Mrs Collins. By a subsequent conveyance dated 31^st August 1964, Mr and Mrs Collins acquired the driveway running from No. 36 down to Firs Road. The conveyance included the whole of the land comprised by the driveway to the point where it meets Firs Road.
4. The original plan showed an intention on the part of Mr Docking to provide a driveway from Firs Road to the proposed bungalow running down from the immediate area of the bungalow, parallel and immediately adjacent to the Pridmores' drive along its length to Firs Road. This driveway, according to the plan, was to have a passing bay carved out of land presently owned by Mr Docking to enable vehicles entering and exiting from the property, at the same time, to pass without having to reverse on to Firs Road. At Firs Road the original plan showed that it was possible for a vehicle to enjoy the use of a widened splay before entering Firs Road. Part of the land comprising the splay then belonged and still belongs to the Pridmores but, according to the terms of the application for permission, all the land included in the proposed development was certified as being owned by Mr Docking.
5. On 18^th October 2003 the Pridmores received a standard letter from the Council notifying them of the application for permission, in their capacity as “occupier of a property in the vicinity of the site” (“a neighbour's notice”). In common form, the letter gave notice that the plans and other details were available for inspection at the planning office in Salisbury on weekdays between 9.00 am to 5.00 pm and on Friday 9.00 am to 4.00 pm. Because of their working commitments, there was little prospect of the Pridmores gaining access to the plans and details in the near future and so Mr Pridmore went, without delay, to see Mr Docking.
6. Mr Docking showed Mr Pridmore a copy of the original plan. They also had a discussion in the course of which Mr Docking stated that his architect had mentioned a proposal regarding access to the new property, which, it appears, the architect had in mind to raise at a later stage, perhaps after permission had been obtained. In essence, the Pridmores could be offered a couple of feet of extra width on their driveway, to be taken from Mr Docking's land and, in exchange, a turning circle could be created at the top of the drive close to or in the Pridmores' garden in order to service the new property. Mr Pridmore saw the proposal as tantamount to making the driveway a public highway for the benefit of the new property and visitors to the new property.
7. The original plan, of course, did not reflect this proposal, but it did show a garage for the new property at the southern end of the new plot close to the proposed boundary with No. 38 and situated in an amount of space which was adequate to allow, assuming no other vehicles were parked, a vehicle to turn round before proceeding down the driveway to Firs Road.
8. Sometime before the 22^nd October, Mrs Wallace, the planning officer for the Council, became aware that the Pridmores owned part of the splay and that the certificate signed on behalf of Mr Docking was, consequentially, false. By this time, the Highway Authority (Wiltshire Highway Partnership) had been consulted on the original plan. By a letter dated 30^th October 2003, it indicated that it was not raising any objection to the proposal.
9. On 11^th November 2003 Mrs Wallace informed Mr Docking's agent that the proposed dwelling was likely to receive a recommendation for refusal. She suggested that the application should be withdrawn and that Mr Docking could start again. She stated that if the application was not to be withdrawn, since the Pridmores had stated that the applicant did not own all the land within the red line on the plan and that they owned some of it, notice should be served by Mr Docking on the Pridmores as owners of some of the land in the application, and further that an appropriate Certificate B should be filed. The reason given for the likely refusal of the application was that the property, as shown on the original plan, was too close to the Pridmores' property. Mrs Wallace suggested that the bungalow should be reduced in size and moved so that the garage, which was presently on the south side of the property, would be situated adjacent to the boundary with the Pridmores and the bungalow would thereby be farther from the Pridmores' boundary.
10. At all material times throughout these discussions and thereafter it would appear that Mrs Wallace treated the application as valid and falling within the requirement that it should be dealt with within eight weeks of its submission (see Article 20(1) Town and Country Planning (General Development Procedure) Order 1995 SI 1995 419 (“the GDPO”). As a result, the application was to be considered at a planning committee meeting on 16^th December 2003.
11. The application was not withdrawn by Mr Docking; instead an amended plan was submitted on 27^th November 2003, being a little under three weeks before the proposed planning committee meeting. No form of Certificate B was delivered with the amended plan. It followed that there was no confirmation that an owner's notice had been served on the Pridmores. Notice of any application for planning permission must be served on an owner of land included in the application before the application is made (see article 6(5)(a) of the GDPO)). Since Mr Docking had not made a fresh application this requirement could not be met in connection with the application, which he had chosen to amend. Mrs Wallace did not receive any form of notice that the Pridmores had been served as owners (albeit out of time) and did not receive a form of Certificate B. until 10^th December 2003, being six days before the proposed meeting. Despite the absence of any form of Certificate B, Mrs Wallace nevertheless informed all objectors (including the Pridmores) by a letter dated 9^th December 2003 that the application was to be considered on 16^th December 2003. The Pridmores had already received a letter notifying them, as neighbours, of the amended application on 3^rd or 4^th December. The amended plans were not submitted to the Highway Authority at any time before the committee meeting on 16^th December 2003.
12. Certificates and notices are required to be in the form prescribed by the GDPO. Certificate B, when submitted, purported to verify that the Pridmores had received notice of the application as owners on 2^nd December 2003. It was manifest on the face of the certificate that the notice required by the Town and Country Planning Act 1990 (“T&CPA”) and the GDPO had not been given. Mr Docking had elected not to put in a fresh application and the failure on his part to serve an owner's notice before the application had been made could not be fulfilled. Nor, having regard to the date set for the hearing of the application and, disregarding the falsity of the certificate, could 21 days elapse from the date when the Pridmores had notice of the amended application (See article 20(5)(b) GDPO)). It is to be remembered that the Pridmores had received due notice of the application, as neighbours, and, as we shall see, the requirements for notice to objectors of any amendment to an application, being discretionary, are less strict (see DOE Circular No. 15/92 paragraph 25).
13. However, it has to be pointed out that at no time did the Pridmores, according to their evidence, receive any notification as owners (even late notice) that a planning application had been made which affected land owned by them. There is no evidence from Mr Docking or his agent on the issue but for the terms of the certificate itself, that the Pridmores were given notice on the 2^nd December. On the evidence, the form of Certificate B lodged by Mr Docking must be regarded as false and the Pridmores' evidence, if wrong, should have been answered. It should be remembered that section 65(6) of the T&CPA makes it an offence to knowingly issue a false or misleading certificate.
14. The planning officer's report to the committee was drafted on 9^th December 2003, being the day before the receipt by the Council of the form of Certificate B. On 16^th December 2003 the planning committee considered the application, having considered the report and the matters raised before it and resolved to grant planning permission. Planning permission was issued on 27^th February 2004.

THE STATUTORY REQUIREMENTS IN RELATION TO NOTIFICATION

15. The regime commences with the T&CPA and the details are laid down by the GDPO. Section 65(2) of the T&CPA requires that provision should be made by development order for the notification of owners of land on which planning permission is sought. Section 65(5) provides:-

“A local planning authority shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied.”

I have already drawn attention to the penalty for a knowingly committed breach.

16. Effect has been given to section 65 of the T&CPA by the GDPO. Article 6(1) of the GDPO prescribes that:-

“Subject to paragraph (2), an applicant for planning permission shall give requisite notice of the application to any person (other than the applicant) who on the prescribed date is an owner of the land to which the application relates….

(a) by serving the notice on every such person whose name and address is known to him ….”.

By Article 6(5)(a) the “prescribed date” is 21 days before the date of the application. It follows that, once an application has been submitted without due notice to an owner, the requirement cannot be fulfilled. The consequences of non-fulfilment are that the application should not be entertained by the local planning authority (see section 65(5)) and the application should not be determined (see later under article 20(5) of the GDPO). On this occasion, the local authority knew of two false certificates, knew that notice had not been given and that it was possible for it to be given and proceeded to entertain and determine the application.

17. Article 7 of the GDPO provides for certificates to be in a prescribed form. It provides:-

“Where an application for planning permission is made, the applicant shall certify, in the appropriate form prescribed in Part 2 of schedule 2 to this Order or in a form substantially to the like effect, that the requirements of article 6 have been satisfied…”

It can be seen from the detail of the above provisions that the clear intention of the statutory scheme is that an owner of land included in the proposed development should be given prior notice of an intention to submit a planning application and that the obligation to give such notice falls on the applicant for permission.

18. Article 8 of the GDPO imposes an obligation on the local planning authority to notify adjoining owners or occupiers. The Council discharged this duty.
19. Article 19 provides:-

“(1) A local planning authority shall, in determining an application for planning permission, take into account any representations made, where any notice of the application has been:

(a) given by site display under article 6 or 8, within 21 days beginning with the date when the notice was first displayed by site display;

(b) served on

(i) an owner of the land or a tenant of an agricultural holding under article 6, or

(ii) an adjoining owner or occupier under article 8,

within 21 days beginning with the date when the notice was served on that person, provided that the representations are made by any person who satisfies them that he is such an owner, tenant or occupier; …”

It follows that the right to receive a notice gives rise to a requirement, on the part of the recipient, to make representations within 21 days in order, in turn, to impose an obligation on the local planning authority to take the representations into account.

20. Article 20 of the GDPO is headed “Time periods for decision”. In its material part it provides:-

“20 (1) Subject to paragraph 5, where a valid application under article 4 or regulation 3 of the 1988 Regulations (applications for planning permission) has been received by a local planning authority, they shall within the period specified in paragraph (2) give the applicant notice of their decision or determination or notice that the application has been referred to the Secretary of State”.

The relevant period, according to subsection (2), is a period of eight weeks beginning with the date when the application was received by the local planning authority. Subsection (3) states, as material:

“For the purposes of this article, the date when the application was received shall be taken to be the date when each of the following events has occurred-

(a) the application form or application in writing has been lodged with the authority mentioned in article 5(1);

(b) any certificate or documents required by the Act or this Order has been lodged with the authority;

(c) …”

Article 20(5) provides:

“Subject to paragraph (6), a local planning authority shall not determine an application for planning permission, where any notice of the application has been –

(a) given by site display….”

(b) served on an owner of the land …or to an adjoining owner or occupier under article 8

before the end of the period of 21 days beginning with the date when the notice was served on that person;…”

21. For completeness, it should be noted that there is no statutory obligation on local planning authorities to publicise changes to applications once they are accepted as valid. It is at the discretion of the authority to decide whether further notice is desirable (see DOE Circular No. 15/92 para 25).
22. In summary, the procedural position is as follows:-

(1) Mr Docking failed to notify the Pridmores of the planning application as he was required to do pursuant to section 65(5) of the T&CPA and article 6 of the GDPO.

(2) Mr Docking (or his agent acting on his behalf) completed a false certificate of ownership which wrongly certified that he owned the whole of the land covered by the application.

(3) Mr Docking (or his agent acting on his behalf) thereafter completed a certificate which falsely stated that the application had, on 2^nd December 2003, been served on the Pridmores as owners of part of the land included in the application. On the evidence before me, no such form of notice was served on 2^nd December 2003 or at any other time.

(4) Since the application was dated 14^th October 2003, it was manifest that, even if notice had been given on the 2^nd December 2003, prior notice of the application had not been given. It has not been suggested that prior notice of an amended application, where the original application has not been the subject of prior notice, satisfies article 6 of the GDPO.

(5) Between 22^nd October (at the latest) and thereafter the Council entertained the application knowing that false certificates had been lodged.

(6) The application for permission was determined on 16^th December 2003. Even if the false revised certificate had been regarded as valid, article 20(5)(b) stipulates that the planning application cannot be determined within 21 days of the service of the article 6 notice on the owner.

(7) The Pridmores received notice of the original and amended application from the Council, given to them in their capacity as neighbours. Notice of the amended application was given less than two weeks before the date on which the matter was determined.

23. It is submitted, on behalf of the Council, that Mrs Wallace entertained the application and submitted it for determination because she believed the Council was under an obligation to determine the planning application within eight weeks of its receipt by the Council, namely on 14^th October 2003. The evidence does not disclose that any consideration was given to the terms of article 20 of the GDPO. The eight-week rule applies to a “valid application” and time does not start to run until any certificate required by the GDPO has been received (article 20(3)).
24. One must be careful in this case not to conflate the separate issues concerning the invalidity of the application for permission and the considerations relevant to the application to quash the consequent grant of planning permission. Having regard to the language of section 65(5) and articles 6 and 20, I have no hesitation in concluding that the requirements imposed on an applicant are mandatory. A dishonest failure to adhere to them is a criminal offence. The application was invalid. But this conclusion still leaves open the answer on the issue as to whether the grant of permission should be quashed. It follows that Mrs Wallace erred in law in considering that there was a requirement to determine the application within eight weeks. The immediate consequence of the error was that she concluded that adequate notice had been accorded to the Pridmores, as objectors, for them to consider the amended plan.
25. Further, in communicating with the agent for Mr Docking on the 11^th November she did not appear to realise that it was open to the Council to refuse to accept the application on the ground that the requisite owner's notice had not been served.
26. In my judgment she should have required a fresh application to be made, with prior notice being given to the Pridmores and the completion of a certificate in the correct form. No complaint could have been made had she refused to accept the application. In paragraph 8 of her witness statement she states:

“I asked that if they wished to continue with the application then as Mr and Mrs Pridmore's representations indicated that the Applicant did not own all the land within the red line, I asked for notice to be served on the neighbour at No. 36 and for an appropriate Certificate B to be filed with the application”.

It is difficult to see what it was hoped would be achieved by this if, by “the application”, she meant the existing one, since an appropriate Certificate B could not be filed in connection with the existing application. If she meant to refer to the application continuing by means of a fresh application being lodged, her subsequent behaviour is difficult to understand for she accepted an amended application.

27. It is not clear from paragraph 8 whether Mrs Wallace realised on 8^th November that an amended plan might be lodged. Paragraph 9 is equally unilluminating on the issue. She merely states:

“However, the Applicant was unwilling to withdraw his application and, on 27 November, his agent submitted amended plans”.

No doubt because the amendments reflected the advice she gave on the 11^th November, she does not appear to have considered the changes as they might have affected vehicles turning in the garage area to leave the property. She states (para 9):

“I returned the amended application form to the agent because details regarding the Certificate had not been completed correctly. I asked for the correct completion of the Certificate B and confirmation of when notice had been served on the neighbour at No. 36”.

The nature of the error which caused her to send the amended application back is not disclosed. It follows that Mr Docking, by his agent, committed these errors in connection with the requisite certificates. The suggestion by Mrs Wallace that there could be a correct completion of Certificate B could only arise if she thought that the Pridmores had been notified prior to the 14^th October (the date of the application). Since the error originally made was to ignore their ownership and certify that the applicant was the owner of all the land, it is difficult to see what Mrs Wallace had in mind.

28. Whatever she had in mind on or about the 27^th November, it is difficult to see why she was satisfied with the Certificate B which she did receive, eventually, on 10^th December. In the meantime, she had continued to process the application and sent out notices in connection with the amended plans and the date for the committee hearing.
29. Although there is no reason to believe she knew that no notification had been given to the Pridmores by the applicant or his agent on 2^nd December 2003, had she considered the terms of the Certificate B, she must have realised that it was false, although it purported to be in the prescribed form because she knew no notice prior to the application had been given.
30. Further, she gave no effect to the form of notice by following article 20(5)(b) of the GDPO, which requires 21 days to expire before the planning application is determined.
31. In the light of the above, I have concluded that, in so far as she exercised the Council's discretion in accordance with DOE Circular No. 15/92 paragraph 25, she erred because she failed to take account of a number of material considerations. To the matters appearing above must be added the failure to consider whether the amended plans should be submitted to the Highway Authority and the contents of paragraph 41-44 below.
32. Having stated the character of the irregularities, I turn now to the issue of discretion, commencing with the law.

THE LAW ON VOIDABLE DECISIONS

Main v Swansea City Council (1984) 49 P & CR 26.

The Facts

33. An application was made for outline planning permission for a residential development of certain land and the certificate stated that requisite notice of the application had been given to all other owners of the land. A small, but not de minimis, part of the land was owned by another person who was not specified and whose identity was and subsequently remained unknown. The scheme ultimately approved did not involve development of the land owned by the unspecified person. Outline planning permission had been granted in January 1977 and approval of the reserved matters was granted on 24^th April 1980. Mr Main was granted permission to apply for judicial review on 12^th June 1980. The inference from the material before the court led it to conclude that the original application was unaccompanied by a certificate of any kind as required by the relevant section of the Act and that, when that was observed, it was returned by the local planning authority with a request that it should be re-submitted with an appropriate certificate.
34. The Court concluded that, at the time when the Council considered and determined or entertained the outline application, it was accompanied by a certificate that, in form, was, on its face, as required by the relevant section of the Act. But, as the Court observed at page 31:

“That certificate, however, was not the certificate that, on the facts, was required by section 27. The outline planning application related to land that, although almost wholly owned by the council, was owned as to a small, but not de minimis, part, by some person or persons whose identity was at the time, and still remains, unknown. ”

35. Accordingly, the Court concluded that the certificate should have stated and included a statement to the effect that the applicants had taken steps (and specifying them) as were reasonably open to them to ascertain the names and addresses of the owners of the part of the land not owned by the Council, but had been unable to do so. It should have also stated that requisite notice had been given by being published in a newspaper circulated in the district. The court, therefore, concluded:

“….(a) the certificate was inaccurate in what it did state, for notice had not been given to all the owners; and (b) that the newspaper publication designed to ensure that the application should come to the notice of unidentifiable owners had not been effected. ”

36. It had also been contended in the case that the certificate was known to be false both by the Council and by the agents who had submitted it. This contention had been rejected by the trial judge and it was rejected by the Court of Appeal. The Court of Appeal stated:-

“There is, however, no evidence to establish that, either when the certificate was submitted or when the outline permission was granted, it was known to the council or the applicants or their agents that it was false. ”

37. After detailed consideration of the principles in connection with jurisdictional and procedural error and the circumstances in which the former will arise so as to give rise to a complete nullity as opposed to a decision being vitiated and voidable, it held:-

i) that a factual error in a certificate under section 27 of the Town and Country Planning Act 1971 might be no more than an irregularity that did not go to the jurisdiction of the planning authority to entertain the application for planning permission notwithstanding that the provisions included the words “shall not entertain”;

ii) it rejected a submission that a factual error that was not so gross as to make the certificate no certificate at all was necessarily a mere irregularity in respect of which an applicant was not entitled to relief;

iii) that the defects in the certificate had been sufficient to entitle the court to strike down the subsequent grant of outline planning permission in certain circumstances, but that it was not a complete nullity and the matter was one for the discretion of the court;

iv) that since throughout the period between the grant of outline planning permission and the approval of reserved matters the applicant had not objected to the outline planning permission and the Secretary of State had known of the position with regard to article 11 for a long time and not sought relief and since the scheme approved did not involve development of the land owned by the unidentified person it was too late, at any rate at the suit of the applicant, to quash the grant of outline planning permission and thereby the approval of reserved matters.

38. Mr Pickles for the Council submits as follows:

i) That, in this instance, there is no allegation of dishonesty against his client nor any allegation of bad faith.

ii) Although Mr and Mrs Pridmore suggest that they were provided with inadequate time within which to consider an objection, which they would have advanced to the amended plans in connection with the availability of turning space, in truth they had had sufficient time to respond. He submitted that they had effectively been engaged in the planning process from an early stage. They had viewed the revised drawings.

iii) That, although the procedural irregularity vis-a-vis the Pridmores as owners could not be corrected, the overlap between their status as owners and their status as a neighbour meant that they had been involved in the consultation process. They had made representations and they had been considered.

iv) That the decision should not be quashed unless at least there was a possibility of a different outcome had the regulatory breach not occurred.

v) The Council had acted quite properly in bringing the revised drawings to the Pridmores' attention and, although they had not received 2l days for response, they had received an adequate period of time which was reasonable.

vi) He submitted that the Pridmores had raised their complaint very late in these proceedings. They did not request further time at either consultation stage. He submitted that the case for prejudice which they are now seeking to make out had only been raised at a late stage in these proceedings. He made no submission in connection with the conduct of Mr Docking or his agent.

39. In my judgment the conduct of Mr Docking and/or his agent on his behalf disclose a cavalier disregard for the mandatory requirements in connection with a statutory certificate. It is one thing to fail to give notice to an unidentified owner of part of the land, as in the case of Main, but it is quite another to certify that prior notice of an application has been given, when it was known that no such notice has been given. More than that, as I am satisfied on the evidence, it is yet worse to certify that notice has been given on a stated date (2^nd December) when no notice had been given on that day or at all.
40. I have concluded that for the Court, in these circumstances, to exercise its discretion so as to preserve the benefit of the planning permission granted to Mr Docking would come close to undermining the mandatory scheme of the legislation. Nor can I see that the law as stated in Main anticipates saving voidable grants of planning permission from being quashed where there has been a deliberate failure to comply with the mandatory requirements of the scheme of the legislation to which the local planning authority, acting in good faith, has been party and where, operating under an error of law, it has gone on to press, unnecessarily, for prompt and timeous determination. In the case of Main, the applicant for relief was not the owner affected by want of notice and the allegation of acting with knowledge of the false certificate was rejected.
41. More than that, I reject the suggestion that it is clear no prejudice has occurred. It is not a convincing answer to the Pridmores' complaint, which is that more time was required to consider the amended plan, for the Council to assert that the matter now raised in these proceedings should have been raised earlier and/or that they should have asked for more time at the time they saw the amended plan. The suggestion misses the substance of the complaint. It is because they had too short a period of time to consider the amended plan that the Pridmores now suggest they failed to realise that points on the available turning space could have been made by reference to the amended plan. For that reason, the issue has been raised in these proceedings.
42. As I pointed out in the course of argument, it is by no means clear how much space is available, according to the amended plan, to enable vehicles to turn. The suggestion made by Mr Docking to Mr Pridmore that the architect had in mind to suggest negotiations for the creation of a turning area points to the existence of a tenable view that, even with the plan as submitted, turning was considered likely to give rise to difficulty.
43. Nor am I satisfied that sufficient attention was given by Mrs Wallace to a risk that the amended plan might cause vehicles to reverse into Firs Road. Whilst consideration was given to the passing bay as obviating the need for a vehicle, which was entering the property to reverse into Firs Road, in my judgment, the terms of the report to the committee could have been understood as stating that no risk of reversing otherwise existed. In the light of the evidence before the Court, these matters require investigation and consideration.

The Highway Authority

44. I have seen no explanation for the amended plan not being put before the Highway Authority. I assume the failure is to be explained by the desire to adhere to the 16^th December date for the decision. I have seen evidence relating to what the Highway Authority might have considered had the amended plan been submitted to them. From the statement of Mrs Wallace, which records this evidence, fresh consideration was given only to the significance which the Highway Authority would have attached to the fact that the splay at Firs Road was partly owned by the Pridmores. I regard this as an indication that the point being made by the Pridmores in their representations to the planning committee was not adequately considered by Mrs Wallace. The fact of ownership carried with it a related point in connection with a right of way over the land in the splay. Whereas Mr Docking enjoys a right of way which would enable him, when turning left into Firs Road, to angle his car away from the bend to the driver's right, unless the Pridmores accord the owners of the new property an equivalent right of way, that facility will not be available and the emerging vehicles will be closer to the bend and will not be able to be angled for the manoeuvre. On the evidence, the Pridmores are not prepared to grant a right of way. At the least, this seems to require investigation and consideration by the Highway Authority along with the point made in connection with the turning facilities for the property.
45. For the reasons I have stated, and in the exercise of my discretion, I have concluded that the planning permission granted in this case must be quashed, on this ground alone.
46. Having regard to my conclusion, I propose to state my conclusions on the remaining grounds briefly.

Failure to have regard to material considerations relevant to highway access

47. I have said enough in paragraphs 43-46 above to show that I have concluded that there was a failure to have regard to relevant considerations. I have little doubt that Mrs Wallace permitted her erroneous view of the eight-week requirement to influence her decisions.

Misleading guidance on tandem development

48. The guidance is said to have been misleading because it failed to distinguish between a back garden development (being the first in the garden in question) and two levels or occasions of development within a back garden area (being the second new house in the original garden area). I see no reason to confine the concept of tandem development to one development per garden. Much will depend on the size of the garden in the first place. It is the density of the development which matters and that can be ascertained from the plans and the site and the housing in the area. It must have been obvious to an informed planning committee that the Pridmores' property had been built in the garden of No. 38.

Misunderstanding of PPG3

49. Mrs Wallace's report stated:

“… tandem development is already present in the locality and it may be difficult in principle especially in view of the present requirement to increase densities in existing urban areas, to refuse a new dwelling in this position”.

It is submitted that it was wrong to suggest that national planning policy (PPG3) “required” an increase in “densities”. Further it was submitted that the suggestion amounted to advice that the policies in the adopted development plan, which was resistant to tandem development, had been superceded.

In my judgment the submission ignores the impact of the next paragraph of the report to the following effect:

“Although the proposed dwelling is located in a backland position, it is considered that it is an acceptable form of development on account of the design which is single storey, low impact and has no window openings above the ground floor that are likely to overlook neighbouring properties. The proposed dwelling would be within a plot smaller than some in the local area but very similar to those in Ilynton Drive and Juniper Drive”.

This paragraph follows the criteria set out by the adopted development plan. Had this paragraph followed the opening words of the previous paragraph instead of the reference to “… the present requirement to increase densities”, the position would have been clearer.

I am satisfied that, in the context of the report, it was a form of shorthand to refer to national policy as a “requirement”. It should be remembered that national policy does impose some procedures to be followed, for example, a search sequence and maximisation of previously developed land and the more efficient use of land. In a loose sense, these are goals which the local planning authority have to have in mind and they are, by their nature, going to have the consequence, when applied, of increasing density in urban areas.

I regard the criticism of the report to be more as to form than substance.

50. Permission to apply for judicial review is granted and the application is granted. The decision to grant planning permission to the interested party is quashed.
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MR JUSTICE NEWMAN: For the reasons given in the judgment which is now handed down, the grant of planning permission in this case must be quashed. Yes, Mr Kolinsky?

MR KOLINSKY: I am grateful to my Lord. My Lord, so far as relief is concerned, my Lord has already indicated in the judgment the appropriate order is to quash the relevant planning permission and I do not seek any further relief. On the question of costs, I seek an order for costs. My understanding of the position regarding my learned friend's position is that it is common ground that there should be an order for costs. It is common ground that the ultimate amount of that order for costs should be determined by detailed assessment. The only issue between us is the amount of an interim payment that it would be appropriate to award at this stage on account of costs.

MR JUSTICE NEWMAN: It being a one-day case, is there not an assessment from --

MR KOLINSKY: My Lord, it is a matter of discretion as to what the appropriate approach is. It was tried in one day. It is therefore capable of being assessed by summary assessment. The schedules of both sides are on the large side, my Lord.

MR JUSTICE NEWMAN: Have I got them?

MR PICKLES: I was just asking that.

MR JUSTICE NEWMAN: I cannot remember whether I had them. Would you not rather have a summary assessment?

MR KOLINSKY: My Lord, there are reasons which has led both sides to think that a detailed assessment may be appropriate. One is the size of both schedules and the other is that some of the time reflects matters such as attempts to reach an accommodation between the parties, under the understanding of which may well take more time that it is appropriate to afford in this forum. So I think both parties had arrived at the position that a detailed assessment would be the appropriate mechanism for resolving the actual full amount. That is our schedule, is it, My Lord?

MR JUSTICE NEWMAN: Your costs are twice as much.

MR KOLINSKY: My Lord, yes, although that is reflected partly in the difference in hourly charging rates --

MR JUSTICE NEWMAN: I have not had a chance to look at the make-up.

MR KOLINSKY: -- my Lord, perhaps also partly in terms of the relevant expertise of both sides. The order I would seek from my Lord today is that there be an interim payment on account of the final assessment of costs in the amount of the defendant's schedule, and that it be a matter for detailed assessment or an agreement as to whether there is any further balance to be paid.

MR JUSTICE NEWMAN: What is the position in relation to the Dodds? They were not represented.

MR KOLINSKY: They were. I was instructed on behalf of all claimants.

MR JUSTICE NEWMAN: I see, you were instructed on behalf of all claimants.

MR KOLINSKY: My Lord, yes.

MR JUSTICE NEWMAN: There was no particular argument advanced so far as they were concerned.

MR KOLINSKY: No, my Lord, the arguments were common, effectively.

MR JUSTICE NEWMAN: Has their presence in the case added to the costs at all?

MR KOLINSKY: My Lord, no. My Lord, other than that it has added to my solicitor's costs in the sense of liaising with more than one claimant.

MR JUSTICE NEWMAN: That may be an issue. I suppose that might be a contentious matter.

MR KOLINSKY: I would respectfully suggest that that is a matter that would be appropriate to resolve on a detailed assessment.

MR JUSTICE NEWMAN: It might be a matter of principle which the Master might take the view was better done by the court.

MR KOLINSKY: My Lord, my primary submission would be that their presence has not added materially to the overall costs.

MR JUSTICE NEWMAN: No, I can understand their presence has not added to the costs, subject to hearing Mr Pickles, of the defendant, but on the other hand, if you tell me your bill of costs some way reflects the added element of having two other claimants, then that is a relevant matter.

MR KOLINSKY: My Lord, I am instructed that it probably has added in a relatively marginal way to the overall costs, and that the likely head there would be attendance on clients. It may be appropriate for my Lord to give an indication as to the approach to be adopted on that.

MR JUSTICE NEWMAN: Your solicitor did not take witness statements from them?

MR KOLINSKY: My Lord, there were witness statements put in in relation -- my Lord may recall all of the claimants put in witness statements, although they were all relevant to the overall factual chronology which, my Lord, I would respectfully suggest is a matter that is sound in the ultimate judgment.

MR JUSTICE NEWMAN: All right, I will hear what Mr Pickles says about it. But the figure you want anyway is an interim payment of the amount which appears on their schedule?

MR KOLINSKY: Rounded down to £18,000, my Lord.

MR JUSTICE NEWMAN: All right. Mr Pickles?

MR PICKLES: May it please your Lordship, in relation to costs, my learned friend's summary of the position in broad outline is correct. In terms of the quantum of an interim payment, I say simply this: (1) the context of all of this is that the claimant's claim for costs is enormous; (2) it is enormously larger than the defendant's; and (3) I think it is also respectfully relevant to bear in mind that the application has actually proceeded on -- I am not sure whether it was one and a half or two of six grounds. We started out in these proceedings on the basis of six grounds, two were jettisoned at the skeletal stage and at least two of them failed before your Lordship. Fourthly, I do not think I would get 100 per cent recovery of my costs, as much as I would have liked to, I do not think I could have done. So I respectfully submit that, in that context, your Lordship should make a relatively modest order. The figure I put before your Lordship is £12,000 -- £12,000 to be paid within 28 days. In terms of the split between the claimants, I respectfully suggest that your Lordship should indicate that the Dodds' participation in these proceedings has been marginal.

MR JUSTICE NEWMAN: So you say all I should do is make an interim payment of £12,000 and indicate for the benefit of the full assessment that the Dodds' participation has been marginal?

MR PICKLES: Yes. It would also help the Master in taxation if your Lordship were to confirm what I have just said, which is to say that this application has succeeded on --

MR JUSTICE NEWMAN: That is why I repeated what you were asking me because that is asking me to formally engage in an exercise of not awarding the claimants all their costs, but only ordering that they should be entitled to some of their costs because they have raised issues upon which they have failed. That is a substantive application to make in connection with costs. It requires specific consideration and so forth.

MR PICKLES: I have to say I have not given that specific consideration. But the issue of the extent to which, and the basis upon which, the claim has succeeded will certainly be part of the argument before the Master. I respectfully reinforce the argument that your Lordship should make a modest order. If it is necessary on my feet -- if your Lordship thinks it right for me to submit that your Lordship should make only a partial order, then I respectfully, as I stand here, should do that. If your Lordship takes the point that this application has succeeded on one and a half of six grounds -- your Lordship knows perfectly well that six dropped away -- your Lordship has never had to fuss about two of the grounds and dismissed two of them, and I do respectfully place before your Lordship the alternative that your Lordship should perhaps entertain that.

MR JUSTICE NEWMAN: I do not think that you can leave it for the Master. If you want to make a submission, you must make a submission.

MR PICKLES: Well, I do.

MR JUSTICE NEWMAN: All right.

MR PICKLES: Do I need to elaborate it?

MR JUSTICE NEWMAN: I do not think you do. It does not bear much elaboration.

MR PICKLES: Does your Lordship accept, with respect, the factual position as I describe it?

MR JUSTICE NEWMAN: There were six issues, two dropped out by the time it reached me and then so far as the judgment was concerned, you are right that two of the grounds which were proceeded with did not find favour with me.

MR PICKLES: That is right. I respectfully, on reflection, should be protected in terms of my exposure to costs in respect of those matters which have been withdrawn or failed. I submit that there should be an order reflecting that.

MR JUSTICE NEWMAN: Thank you, very much. Yes, Mr Kolinsky, what would you like to say?

MR KOLINSKY: My Lord, in the course of that exchange, my understanding of my learned friend's position, and I suspect indeed my learned friend's position has changed radically, I had not understood that there was resistance to the principle of the full order for costs. I do strongly submit that plainly it is matter of discretion, but I do strongly submit that the appropriate order would be the totality of the costs, to be assessed by detailed assessment. I say that for the essential reason that a large part of the hearing and the evidence have been directed at the chronology of what has happened and the consequences of the procedural defects on why it was perceived to be unfair. The grounds that have fallen by the wayside, taken in turn, the first one was a reasons point, which was rightly abandoned immediately on receipt of my learned friend's summary grounds of resistance, when he pointed to the transitional provisions. So the costs of that are marginal in the extreme. Then there were three grounds, each of which effectively took issue with the office's report; on its face, none of which required by definition a detailed evidential response and none of which received a detailed evidential response. The detail of the evidence put in by all sides was the chronology and the specific fact-intensive issues relating to highways and the (inaudible) which took a large part of the hearing before my Lord.

Now, I accept that, before my Lord, I did take time to develop essentially legal submissions in relation to, if you like, the policy of those challenges, but, my Lord, we did manage efficiently to dispose of the hearing in one day. I respectfully submit that it is unrealistic to say that the actual length of the hearing would have been materially less were we simply dealing with the factually complex issues of the consequences of the procedural breaches. So looking at the matter in the round, my Lord, I would respectfully submit that there is no reason to go away from the ordinary rule that costs ought to follow the ultimate result. My Lord, unless I can assist further, those are my submissions.

MR JUSTICE NEWMAN: Thank you, very much.

As to costs, there are two schedules which would, in the normal course, this being a one-day case, have enabled the court to proceed to a summary assessment. But there is a huge margin between the costs claimed by the successful claimants and the defendant's costs. In round terms the claimants are asking for £36,000; the defendant's costs come out at a little short of £19,000. Both sides are, in effect, content to move to a detailed assessment in order for these issues to be resolved, and the court is not minded to therefore carry out a summary assessment, which would require considerable breaking down of the figures in investigation detail which simply is not available to the court today, either by way of information or by way of time.

The next matter so far as costs is concerned is that Mr Pickles submits that this is a case for a partial order being made in favour of the claimants rather than a full order. He says that because there were originally six grounds, but two were abandoned by the time the matter had come before this court. He says, further, that it is plain from the judgment that on two of the issues which were proceeded with in relation to the contents of the office's report, the claim failed. That is manifest from the terms of the judgment. Despite the failure on those two issues, in my judgment this does not come within the margins of those cases where it would be right to treat it as an issue case. The principal reason for that is that, if one pays regard to the nature and extent of the issues upon which the claimant ultimately failed, they are, in terms of their compass, small. They related to the arguments based upon the office's report and some legal argument by reference to, for example, PPG3.

The substance of this case is, as it appears from the judgment, one which required close consideration of the sequence of events and the facts and the various procedural irregularities. The claimants have won on the substance of the case and I see no cause to deprive them of all their costs, such as they may be entitled to after a full assessment.

The next question is how much, therefore, should the court order the defendant to pay by way of interim order. Mr Kolinsky, for the claimants, asked for £18,000, namely the amount of the rounded down figure which represents the costs of the defendant. Mr Pickles urges caution and suggests a figure of £12,000. I do not think that it would be right to take the figure of £18,000, even as it is rounded down from £18,700-odd, as a touchstone for the interim payment. It seems to me that there is reason to give rather more than the £12,000, but not as much as Mr Kolinsky asks for. In the circumstances, the appropriate figure, in my judgment, by way of an interim payment is £14,000.

Mr Pickles, thank you very much for your skeleton on the matters you wanted to raise in support of an application. I have read them and I am sure Mr Kolinsky has seen them. Do you want to elaborate on them?

MR PICKLES: No.

MR JUSTICE NEWMAN: Thank you, very much. Mr Kolinsky, what do you say about this?

MR KOLINSKY: My Lord, I say in broad response that, notwithstanding my learned friend's grounds, the correct analysis as to what has happened here is that my Lord has rightly identified, in paragraph 22 of the judgment, a catalogue of procedural errors. I do not think it is or it can be seriously suggested that any of those procedural errors did not occur. So on the basis of Main, we are plainly into the territory of the exercise of discretion, and I would respectfully say that the point at which the case turned against the defendant was the exercise of that discretion. Notwithstanding my learned friend's careful drafting, I would respectfully submit as a matter of broad approach that he has been unable to identify any error of basic approach. What he complains about rather are matters of emphasis and judgment in the exercise of discretion which, in my respectfully submission, self-evidently is not a basis for identifying an error of law to entertain the Court of Appeal. My Lord, I can, if it would assist, deal with each of the grounds in terms.

MR JUSTICE NEWMAN: I do not think that is appropriate.

MR PICKLES: Can I just say, to a large extent your Lordship is, by virtue of Main, thrust into an area of discretion, but certainly ground 1 does not relate to discretion at all. Ground 1 relates to your Lordship's findings in relation to whether or not, as a matter of law, the LPA were correct in terms of whether or not any error was made. That is not a matter of discretion, with respect. Neither is the last ground which is about whether or not there was evidence before your Lordship to support your Lordship's finding in relation to the highways points. Those do not, with respect, relate to the way in which your Lordship should exercise his discretion. Neither -- I go to the meat in the sandwich -- the middle ground, which relates to your Lordship's conclusion that the period for consideration of the amended drawings (inaudible), but that is not a matter of discretion, that is a pure matter of law, with respect, which we take issue with in terms of the notice that we have produced. I take the point that, although your Lordship on behalf of the LPA -- I state the point that that had been taken within the scope of the exercise of your Lordship's discretion, that these are not all points that relate to discretion.

MR JUSTICE NEWMAN: Just help me on one thing which is in my mind. You are perfectly entitled to submit that, notwithstanding that it is an exercise of discretion, you nevertheless want to take the exercise of discretion on appeal. You are perfectly entitled to say that. But one thing that does appear curious is that if indeed it is truly to be regarded as a discretionary exercise, there is no point of principle involved. We are in a case where, on the analysis in the judgment, what has happened has happened because your clients were, one might say, overzealous in attempting to have this matter resolved within 8 weeks. I find the application on behalf of the Council in a case where, as I say, it is difficult to discern a point of principle as much in issue as opposed to a challenge to an exercise of discretion, which is proposed -- to hear the application when one would have thought the sensible way forward was, if there is an application to be proceeded with, the sooner it was got on with the better and it could be dealt with within 8 weeks if the interested party was to make a further application, rather than the delay which is going to be consequential upon an appeal process. But if you have nothing to say to that, then by all means you do not feel you have to, but it is a point which is in my mind.

MR PICKLES: With respect, may I make two points in response to what your Lordship just said. The first is this: of course Mr Docking could have taken Mrs Wallace's indication and made another planning application, but he did not. (inaudible) in that planning application for the LPA, which they as a statutory authority have to deal with, and so it may be that the third party could have rescued the LPA (inaudible) engage in this litigation, but it did not. He was entitled not to, and with respect here we are wrestling with the consequences of that, but that does not rebound on the LPA because at the end of the day Mrs Wallace asked him to make that application. We cannot take the horse to the water and make it drink.

MR JUSTICE NEWMAN: My judgment takes a different view, but I hear what you say.

MR PICKLES: The second point in relation to your Lordship's exercise of discretion, it is my point in relation -- and of course I respectfully acknowledge the LPA may take the point of discretion to the Court of Appeal -- the point in relation to discretion is that, in relation to the penultimate ground, the basis upon which your Lordship has exercised that discretion does not reflect what is the main purpose of the notification and certification process. I say that with all due humility. What your Lordship has done is exercise the discretion primarily by reference to the culpability of a third party, which, with respect, has got nothing to do --

MR JUSTICE NEWMAN: I have your submissions.

MR PICKLES: I apologise for going on about it.

MR JUSTICE NEWMAN: Not at all, I am very grateful to you.

Despite the careful way in which Mr Pickles has drafted his application for permission to appeal, I am satisfied that this is essentially a discretionary case. So far as the grounds appear in writing, they reflect a difference between Mr Kolinsky and Mr Pickles and, of course, to a certain extent, the court as to whether the proper interpretation of the judgment is as is reflected by Mr Pickles. I take the view that this being a discretionary matter, and also I am bound to observe that it being a discretionary matter raising, in my judgment, no point of principle, it seems to me that it is not in the best interests of any of the parties that this matter should be delayed. There is now a third party or interested party who, no doubt, wishes to pursue a planning application. If he wishes to do so, he can do so, complying with the law in the terms of the judgment, and if he does so, there is every expectation it will be dealt with within the 8-week period, which the defendant attempted to apply to and did apply to this particular application which I have quashed.

In all the circumstances, permission to appeal is refused.

MR PICKLES: Your Lordship, there are three remaining items to tie up. Number 1 is, would your Lordship in relation to the issue of costs give an indication to the Master that the costs in relation to the Dodds were, relatively speaking, modest as a proportion of the whole. I do not think that appears in your Lordship's judgment.

MR JUSTICE NEWMAN: I can certainly record, and I do not think it is contentious, that the Dodds were represented by Mr Kolinsky, that Mr Kolinsky to my recollection made no submissions which involved reliance upon the position of the Dodds, and as a result, the role that the Dodds played in the case is almost imperceptible so far as this court's recollection is concerned.

MR PICKLES: My Lord, there are two other points which can be rolled into one. 21 days is a figure that lingers in this case. Would your Lordship be kind enough to extend the period for my making an application in relation to the appeal to 21 days? The reason for that is to enable the relevant committee to consider whether or not to pursue the appeal, and would your Lordship also roll in with that a 21-day period for payment of the interim order?

MR KOLINSKY: My Lord, the first is not resisted; it plainly is sensible for the Council to take stock, for the reasons my Lord indicated when refusing permission. The second one is resisted in the sense that my clients are individuals, they are not in receipt of any public funding and they have been financially strained by the proceedings. They have been successful, and in the absence of a good reason why 21 days rather than the usual 14 days should be allowed for the interim payment, I would respectfully submit that the normal order ought to apply.

MR JUSTICE NEWMAN: I extend the time for consideration as to whether you go to the Court of Appeal to 21 days, but the interim payment must be paid within 14 days.