England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		27 September 2005

1. SIR MICHAEL HARRISON: This is an application under section 288 of the Town and Country Planning Act 1990 to quash a decision of the First Secretary of State's Inspector, dated 23 March 2005, dismissing the claimant's appeal against the refusal of the Stratford-upon-Avon District Council to grant planning permission for one dwelling within the curtilage of his property at Lawnside, Kissingtree Tree Lane, Alveston, Stratford-upon-Avon.
2. Outline planning permission had in fact been granted for two alternative proposals for one dwelling on the site, on appeal, in 1982. Those outline planning permissions were renewed in 1984. Subsequently, four applications for approval of reserved matters were submitted in 1985, within the requisite timescale as required by condition 2 of the outline planning permission. One of those four applications was refused, but the other three, namely 1225, 1076 and 1077, were recommended for approval, subject to a section 52 agreement to ensure that only one dwelling was erected. It is now, I am told, agreed that the requirement for a section 52 agreement was an ultra vires requirement.
3. There then followed a protracted and detailed planning history, the end result of which is that, surprising though it may seem, none of those three applications for approval of reserved matters has yet been determined. Planning policies have now changed, with the result that the erection of one house on this site within the village of Alveston would be contrary to the existing policies. Eventually it was agreed between the claimant and the District Council that the best way out of the impasse that had been reached was for the claimant to submit a planning application that would be considered in the light of the planning history of the site and without prejudice to the validity of the existing outline planning permission.
4. An application was duly submitted by the claimant which was refused by the Council, and the claimant appealed. The Inspector dismissed the appeal, for reasons to which I will come.
5. It is first necessary to refer to the planning history in a little more detail. Mr Milner, who appeared for the claimant, accepted that there had been long delays and errors on both sides. In January 1992, the District Council, when dealing with applications 1076 and 1077, remarked that the section 52 agreement had not been completed, from which it was concluded that, in view of that delay, the agreement was unlikely to be completed and the planning applications could not therefore be determined. They said:

"Since there appears to be no way forward, I have no choice but to deal with the applications as if they had been deemed to be disapproved, and I therefore intend to take no further action with these applications."

6. In November 1993, the District Council's solicitor said that, in view of the length of time that had passed, it was appropriate to deal with the matter by a fresh application with the planning history being a material consideration. The claimant said he was prepared to submit a further application without prejudice to the validity of the existing outline planning permission. However, after some chasing letters by the claimant in 1994, there then followed a long gap until 1998 when the claimant wrote to the Council asking them to approve reserved matters.
7. In February 1999, he wrote again setting out the legal advice that he had received. A month later, on 23 March 1999, the District Council solicitor wrote, saying that the most important factor in relation to application 1225 was that it had not yet been determined. He said that his advice to the Director of Planning was that he should refer the application back to the Area Planning Committee for reconsideration. There were then chasing letters by the claimant and his planning consultant in a desultory way through 2000 and into 2001, when eventually the District Council's planning officer responded on 3 April 2001. He said that the matter was entirely the responsibility of the applicant and, as there had been a prolonged lack of contact or apparent interest over a number of years, the Council would be entitled to take the view that the application has become "moribund" and would therefore "be deemed to be of no effect". He was of the view that the application would have become of no effect at some time in the past and that it no longer represents a live planning application on the statutory register. He also remarked that, if it were subsequently determined that there was still a current planning application under 1225, he would still not be prepared to issue a planning permission without referring the matter back to the appropriate planning committee. Of course, those references to a planning application and a planning permission are not the correct terminology. In fact, the references should have been to applications for approval of reserved matters and any approval of such an application.
8. Coming now to the evidence given at the public inquiry relating to the present application, there was a statement of common ground in which it was agreed that application 1225 had been supported by the planning committee on 7 March 1985, but that the Council considered applications 1076 and 1077 to be moribund. In the proof of evidence of Mr Clarke, the Council's planning officer, there was a table showing application 1225 as being disapproved on 7 March 1985, which was plainly a mistake. It also showed applications 1076 and 1077 as being "deemed to be disapproved".
9. When it came to the evidence given at the inquiry, the position changed significantly as a result of the evidence given by Mr Clarke in cross-examination. The claimant's witness statement in these proceedings sets out what was agreed by Mr Clarke. Although the District Council have not appeared at this hearing, the papers, including the claimant's witness statement, were served on them and they have written to say that they do not intend to appear. There is no witness statement by Mr Clarke in response to the claimant's witness statement and so I must proceed on the basis that there is no dispute about what the claimant says. I also bear in mind that Mr Milner was the claimant's counsel at the inquiry and can confirm what the claimant says.
10. In his witness statement, the claimant says that it was agreed by Mr Clarke in evidence at the inquiry that if there were an extant outline planning permission, then planning permission should be granted for the current application. He said that the Council's position at the inquiry was that the existence of an extant outline planning permission would be conclusive of the issue in favour of the grant of planning permission, as the policy/principle objection would obviously fall away if there were an outstanding outline consent for the site.
11. Furthermore, the claimant states that it was agreed by Mr Clarke that the three applications for reserved matters approval had at no time been withdrawn or abandoned. It was agreed that the applications had not in fact been determined; there had been no "decision" made on them.
12. The Council's case was that the applications had "not been withdrawn, abandoned or determined", but that they had somehow been "deemed to be disapproved". The Council declined to offer any statutory or other justification for its position, other than to say that the application should be treated as "deemed to be refused".
13. Mr Clarke also accepted that application 1225 had been treated differently. He accepted that it had not been determined, was not a deemed refusal and, indeed, was awaiting reference back to the planning committee, as referred to in the letter dated 23 March 1999.
14. Next, the claimant stated that it was suggested by Mr Clarke at the inquiry that there was no reason why this application, that is to say 1225, could not be referred back to the committee as intended, and that it had not been withdrawn, abandoned or determined.
15. Finally, the claimant stated that it was accepted by Mr Clarke at the inquiry that, if the reserved matters were put back to the committee, there would be no reason to refuse them because there was no outstanding issue or objection to the submitted details.
16. That being the evidence before the Inspector, I turn to the decision letter. In paragraph 1, under the heading of "Procedural Matters", the Inspector gave the background to the appeal and referred to the original outline planning permission in 1982 and its renewal in 1984. He referred to the four reserved matters applications, one being refused and the other three being recommended for approval, subject to a section 52 agreement. He stated that none of those three applications had been determined.
17. In paragraph 2, he identified the main issue as being whether the proposal accords with sustainability objectives in national and local policies. In paragraphs 3 to 9, he set out the relevant planning policies. In paragraphs 10 to 15, he applied those policies to the appeal site and concluded, to put it shortly, that the proposed development would be contrary to those policies.
18. He then turned to the planning history, which he dealt with in paragraphs 16 to 20 of the decision letter. In paragraph 16 and 17 he stated:

"16. The planning history to the site is clearly a material consideration in the determination of this appeal. There are three undetermined reserved matters applications (Refs: S84/1225, S85/1076 and S85/1077). I consider that there is no useful purpose to be served in looking at the reasons as to why these applications have not been determined. The Council regard these as "moribund", although such a view has only been put formally to the appellant in respect of the latter two of these applications. Nevertheless, the Council's view is that such a long time has passed without their being determined that they should all be treated as deemed refusals.

17. The Council could rely on no case law or statutory provision to justify their stance, and it is argued for the appellant that they could be put back to Committee to be determined. Whilst this may be so, the position is that there is no planning permission that can currently be implemented. A legal challenge to the Council's decision to take no further action on the earlier reserved matters applications was threatened by the appellant several years ago but was not pursued. I therefore consider that there is little likelihood that the Council's stance will change."

19. Having referred then to some other matters in paragraph 18, to which I need not refer, he concluded this section of the decision letter in paragraphs 19 and 20 as follows:

"19. I note that in 1993 the Council's solicitor suggested to the appellant that a new application should be made which would be assessed in the light of the planning history as a material circumstance. Notwithstanding that this advice was not acted on for over ten years, I consider that this history is insufficient to counteract the strong policy objection to the proposal.

20. Accordingly, on the main issue, I conclude that the proposal would conflict with sustainability objectives in national and local policies ..."

20. Mr Milner submitted that the Inspector's conclusions in paragraph 17 of the decision letter are inconsistent with the evidence given by Mr Clarke at the inquiry, in particular his acceptance that application 1225 had not been disapproved, that there was no reason why it should not be taken back to Committee, and, if the outline planning permission was extant, it would be conclusive in favour of the grant of planning permission.
21. Mr Milner submitted that the Inspector's conclusion that there was little likelihood that the Council's stance would change was either unintelligible or he failed to have regard to the evidence relating to the Council's position. He also submitted that the Inspector misdirected himself in law because the extant outline planning permission could be implemented, which was a "vitally material consideration for the Inspector to take into account" (see Spackman v Secretary of State [1977] 1 All ER 257 at p.261H).
22. Mr Coppel, who appeared for the First Secretary of State, submitted that the significance of the extant planning permission was overstated because it did not carry with it the right to carry out development. He referred me to the conditions on the 1984 planning permission and to the statutory regime which, he submitted, contemplated that planning permissions would be implemented within a reasonable timescale. He reminded me of the Inspector's conclusion in paragraph 19 of the decision letter that there was a strong policy objection to the present proposal which, he said, would have to be outweighed by the planning history for planning permission to be given. The Inspector had recognised in paragraph 16 of the decision letter that the planning history was a material consideration, and he had recognised in paragraph 17 of the decision letter that the reserved matters applications may be able to be put back to Committee.
23. Mr Coppel submitted that the Inspector was correct in saying that no planning permission could currently be implemented. He contended that, in the light of the statement of common ground and Mr Clarke's proof of evidence, to which I have already referred, the Inspector's conclusion in the last sentence at paragraph 17 of the decision letter was understandable.
24. Finally, Mr Coppel raised the issue of discretion, suggesting that, even if the Inspector had misunderstood what Mr Clarke had said, it would not make any difference because it would require something truly compelling to displace the policy objection.
25. I have to say that I simply cannot reconcile the Inspector's conclusion in the last sentence of paragraph 17 of the decision letter, that there was little likelihood that the Council's stance would change, with the evidence given by Mr Clarke in cross-examination, which was to the effect that planning permission should be granted if there was an extant planning permission, that the three reserved matters applications had not been determined, that there was no reason why application 1225 could not be referred back to Committee and that, if it was put back to committee, there would be no reason to refuse it because there was no outstanding issue or objection.
26. Although the Inspector was technically correct in saying that there was no planning permission that could "currently" be implemented because the reserved matters applications had not yet been determined, there was, on the evidence, no reason why the reserved matters should not be determined so that, in that sense, there was an extant planning permission which was not time-barred because the Council have a continuing duty to determine the reserved matters applications (see Bovis Homes (Scotland) Limited v Inverclyde District Council [1983] JPL 171).
27. Indeed, the claimant, having missed the six-month deadline for appealing the reserved matters applications back in 1985, and there having been no agreement to extend time, the Council's failure to determine the reserved matters applications has deprived, and is depriving, the claimant of the ability to appeal a decision on those applications.
28. Whilst the history of this matter is, in my view, deplorable and does not do any credit to either party, the fact of the matter is that Mr Clarke's evidence in cross-examination at the inquiry gives rise to a significantly more optimistic picture than that portrayed by the Inspector in the last sentence of paragraph 17 of the decision letter.
29. I accept Mr Milner's submission that either the Inspector failed to have regard to that evidence, and in doing so failed to have regard to a material consideration, or that if he did have regard to it, he did not give any intelligible reasons for coming to his conclusion. I have considered whether I should exercise my discretion to refuse to quash the decision on the ground that the Inspector would still have dismissed the appeal on the basis that the strong policy objection would still have outweighed the planning history even if Mr Clarke's evidence in cross-examination had been taken into account. I do not, however, think that it would be right to do so.
30. In view of the fact that there is an extant outline planning permission in the sense that it is not time-barred, and in view of the Council's concession that planning permission should be granted if there is an extant planning permission, there must be a real possibility of a different decision being reached if that evidence is properly taken into account. I would therefore grant this application and quash the Inspector's decision.
31. MR MILNER: I am obliged, my Lord. I ask for an order in those terms and the claimant's costs. There have been schedules exchanged between the parties and, I hope, the court.
32. SIR MICHAEL HARRISON: First of all, is there any dispute on the principle?
33. MR COPPEL: I certainly do not dispute the principle.
34. SIR MICHAEL HARRISON: Let us take this in stages. I will order that the First Secretary of State pays the claimant's costs. Now, I have not seen any schedule of costs. Is it agreed?
35. MR COPPEL: My Lord, it is not agreed. Does your Lordship have a copy?
36. SIR MICHAEL HARRISON: No, it seems that the court has not received a schedule of costs.
37. MR COPPEL: My Lord, might I hand up my copy? I can probably remember what is there.
38. SIR MICHAEL HARRISON: The total is £8,314.21.
39. MR COPPEL: My Lord, the short point I make is this. Bearing in mind that all those involved from the claimant's side had, of course, the familiarity which they developed from doing the planning application and the planning appeal itself, there is a lack of parity, we say, between the costs they seek and those which were sought by the Treasury Solicitor -- a marked lack of parity. We say that there should, generally speaking, be a greater degree of parity, particularly where the claimant's party imparted the greater costs -- the party that comes to the court armed with greater familiarity of the facts and issues raised in the claim before this court. We say that it should be reflected in the order made by your Lordship.
40. SIR MICHAEL HARRISON: First of all, one does normally find that the Secretary of State's schedule of costs is usually less than the other side's for good reasons. Secondly, it seems to me that I should only reduce this schedule of costs if there is some item in there which is said to be excessive.
41. MR COPPEL: My Lord, that is right and one always hesitates before taking this particular point. Those instructing me say that the item for counsel's fees is, in the circumstances, larger than one might have expected, bearing in mind that counsel was familiar with this matter from having appeared before the Inspector.
42. SIR MICHAEL HARRISON: What do you say about that Mr Milner?
43. MR MILNER: I am sure your Lordship will have a feel for these things and the amount of work that goes into these things, including the preparation of the skeleton argument, which has all been helpful to the court, with detailed page references to the bundle, and, of course, the extent of the documentation and issues involved, which perhaps is not fully reflected in the debate before your Lordship this morning. There are quite considerable issues of law that, in fact, have been agreed through the receipt of the Secretary of State's skeleton or subsequent to the submissions of our own, which with a less experienced judge may have taken a little more explaining. In the event, we managed to get through matters fairly expeditiously. But I do not believe there is anything there that is unreasonable.
44. SIR MICHAEL HARRISON: Thank you very much. Mr Coppel, I am not satisfied that it is unreasonable. I will make the order for costs in the sum of £8,314.21. Is there anything else that arises?
45. MR COPPEL: No, my Lord.
46. SIR MICHAEL HARRISON: Thank you both.