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
		12 May 2006

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant challenges the defendant council's decision, dated 8 November 2005, to register the interested party's application for approval of reserved matters under reference 05/02636/REM, comprising community centre, day nursery siting, doctors' surgery siting, associated car parking and 71 dwellings, 23 affordable flats and public open space at areas R11 and R12, Westbury. In summary, the claimant contends that the application for reserved matters does not fall within the scope of the outline planning permission, ref 01/0901955/FUL, and is therefore invalid.
2. Following the grant of permission to apply for judicial review, the defendant indicated that it was not proposing to defend the application and was content to submit to judgment. However the interested party, represented before me today by Mr Mark Lowe QC, contended that the application for approval of reserved matters did fall within the scope of the relevant outline permission.
3. The issue is a very short point of interpretation. Mr Lowe, in a helpful skeleton argument, set out a number of propositions of law which are not in dispute as to the approach to be adopted to the construction of a planning permission. In summary, one should not have regard to extraneous material when permission is clear and unambiguous. One simply looks at the permission itself, including the conditions, together with any plans and documents that are expressly incorporated into the permission. Bearing those principles in mind, although there is a mass of documentation, there are relatively few key documents which need to be considered. The relevant outline permission is dated 11 February 2003. It was described as -

"application under section 73 to continue development without complying with condition 14 of 95/00943 and condition 16 of 01/0021 (to allow construction for a new primary school in the rural buffer)."

That takes us back to the parent outline permission, 95/00943. That is dated 16 March 1998, and permitted the following description of development -

"Residential development including affordable homes distributor roads and link roads district centre including new community uses and comprising A1 A2 A3 D1 and D2 uses primary school extension public open space B1 employment uses and surface water works together with ancillary works ..... "

The formal part of the permission stated:

"The council hereby grants planning permission for the above development to be carried out in accordance with the application and accompanying plans subject to the following condition(s)."

Seventeen conditions were set out, most of which are not relevant for present purposes, but condition 16 was in these terms:

"In order to ensure that the shopping centre is designed to serve the daily requirements of the Westbury Leigh development area, the range of goods and services provided at the centre shall be restricted to food and ancillary convenience items, a bank and/or post office, a public house/restaurant, a hot food takeaway shop and a recycling bank. The district centre may also include an element of ancillary residential development. Full details of all the uses in the district centre shall be submitted as reserved matters pursuant to condition 01 and should be carried out only in accordance with the approved details. The scale of retail provision shall not be greater than the level of local shopping facilities provided for in Policies E3 and SP5 of the West Wiltshire district plan."

Condition 19 in the outline permission dated February 2003 is in similar but not identical terms:

"In order to ensure that the shopping centre is designed to serve the daily requirement of the Westbury Leigh development area, and does not have an adverse impact on Westbury town centre, the scale of retail provision shall not be greater than the level of local shopping facilities provided for in policies H3 and SP5 of the West Wiltshire District Plan and Policies H13 and SP6 of the West Wiltshire District Plan 1st Alteration (Revised Deposit). Full details of all the uses in the district centre shall be submitted as reserved matters pursuant to conditions 1, 2 and 3 and shall be carried out in accordance with the approved details. The range of goods and services provided at the district centre shall be restricted to food and ancillary convenience items, a bank and/or post office, a public house/restaurant, a hot food takeaway shop, and a recycling bank. The district centre may also include ancillary residential development."

4. The application for approval of reserved matters sought approval for -

"Proposed local centre uses for residential development, comprising community centre, day nursery (siting), doctors' surgery (siting) and associated car parking, 71 dwellings, 23 affordable flats and public open space."

One of the points made by the claimant in his application for judicial review was that 71 dwellings could not reasonably be described as being "ancillary residential development" in terms of either condition 19 of the 2003 outline permission or the original condition 16 of 16 March 1998 outline permission. Mr Lowe confirmed that that was not the interested party's contention. Rather, the interested party's contention was a more fundamental one, namely that the parent outline permission, 01/01995/FUL, properly construed, permitted retail, community and residential development and that relocation of that residential development was not in any way fixed by anything in the permission, including the master plan.

5. That takes me back to the original grant of permission which was "in accordance with the application and the accompanying plans". For present purposes, the application itself does not shed any useful light on the matter. There are only two accompanying plans that need to be considered. The first was a site plan which does not assist resolution of this issue, but the second was a master plan. It would seem that during the negotiations following the application for permission the master plan was revised in a number of respects so that by the time planning permission came to be granted in outline on 16 March 1998, the version of the master plan referred to in the permission was master plan 2, W95/0943, drawing no. P.433/1:04/14. That master plan showed in indicative form a proposed road layout, including the position of junctions, and then, by different notations, various land uses. Thus for example one had, in addition to an area set aside for the district centre, areas set aside for primary school, for residential development, for public open space, for employment and so forth. The area set aside for the district centre was to the north of the Westbury Leigh distributor road, junctions 3, 10 and 9 as shown on the master plan.
6. Mr Lowe submitted that the master plan was purely indicative and did not therefore fix the position of either the district centre or residential development. Given that the outline permission permitted both the district centre and residential development, it was open to the interested party to submit an application for approval of reserved matters which showed residential development within the area that had been indicated on master plan 2 for the district centre. Again there is no dispute that the area which is the subject of the detailed application in issue in these proceedings is, in substance, the area that was set aside for the district centre on master plan 2. Accepting, as I do, that the master plan was illustrative rather than intended to be definitive in any detailed way, it was still intended to illustrate or indicate something. Minor revisions of boundaries and realignments of the highways would undoubtedly be within the scope of such an illustrative plan. However what are required within the broad area set aside for the district centre are district centre uses and not residential development which is not ancillary to the district centre.
7. As I say, the master plan certainly left scope for adjustments to some degree as to the size and/or precise location of the district centre. It is interesting to note that the highway network - at least in the vicinity of the site - is broadly as illustrated on the master plan. It shows the extent to which the master plan was able to guide the development, allowing sufficient flexibility but still with the development being carried out broadly in accordance with the illustrative proposals.
8. One comes back to what uses were permitted within that district centre, and the operative part of the permission made it clear that it was to include new community uses and to require A1, A2, A3, D1 and D2 uses. The conditions also made it plain that there could be some element of ancillary residential. But what there could not be was a significant amount of non-ancillary residential. In my judgment, the point is as short and simple as that. The interested party's submissions amount, in effect, to a contention that the master plan should be disregarded and treated as no more than a red line around the site. This was not a bare outline. The master plan was incorporated in the permission. It is one thing to say that the master plan can be regarded as illustrative and/or indicative, it is another thing to say that it can be set entirely on one side so that rather than district centre uses on the area (indicated for a district centre) one has a substantial amount of residential development. That is not say that in today's changed circumstances there may not be a perfectly sound planning case for incorporating more residential development. If it is desired to do that then it should be done by way of a new outline application rather than submitting a detailed application pursuant to an outline permission which permitted development to be carried out, not simply in respect of an area with a red line around the side but in accordance with an accompanying plan which showed, even if only in broad terms, a defined area for a district centre rather than for residential development.
9. For those reasons this application for judicial review succeeds.

(To applicant) Mr Morland, I do not know if you have incurred any expenses, have you?

10. THE APPLICANT: Yes. I have put in a statement.
11. MR LOWE: Mr Morland has submitted a statement; we have seen it and we accept it. I have not seen the total. My instructing solicitor tells me that it is in the order of £1,000; I do not know if that is correct.
12. THE APPLICANT: In the paper work you will see that at some stage the district council, when they decided not to proceed with the matter, said that they would pay me my costs. Because the interested party decided to continue, it seems to me equitably they should not be bound to pay all the costs of this action because costs would have been less if at that point it had ceased.
13. MR JUSTICE SULLIVAN: I think that is absolutely fair. There should be some sort of apportionment so that the council pay up to the time when it threw its hand in effectively and then the interested party would pick up the tab thereafter. I imagine Mr Lowe would accept that as a principle.
14. MR LOWE: I accept that. I accept the figures set out in this statement which would indicate that the cost we should bear is £475.
15. THE APPLICANT: There is my litigant in person time - - - - -
16. MR LOWE: Whatever that is.
17. THE APPLICANT: £9.25, I understand. I have not done the arithmetic.
18. MR JUSTICE SULLIVAN: I would be a little unhappy about 40 hours and 80 hours. What do you say the maximum rate for a litigant in person is?
19. THE APPLICANT: My researches indicate it is £9.25; if it were more I would be delighted. It does seem derisory, but there we are. On a question of timing all I can say is that this has involved a huge amount of time, essentially the greater part of it trying to bottom this issue of what were the drawings to the application, to the permissions, what were the adopted, approved, date-stamped, permission-stamped drawings. As it turns out, I did not need to go through that all with you. But you will see from the bundles where I have trawled the council's archives to try and - - because there is a drawing missing. It is quite clear that the original red-stamped and permission-stamped master plan 2 drawing was issued but is no longer - - one to the applicant, sorry, one to the developer and one should have been retained in the council's records. Nobody can now find it. It did seem to me crucial to establish that there was such a document because if the document was merely an unstamped copy then the argument Mr Lowe pressed on you that the plan was merely to go with Section 106 planning agreement might trip me up.
20. MR JUSTICE SULLIVAN: I do not think that we need to trawl through all that. I think you certainly should be entitled to quite a few hours. What I am minded to do as against the council is to say - if I round it up and I have to do the best I can - I would have thought something like £800 against the council and £900 against the interested party; and you could not complain too much about that, nor could the interested party, bearing in mind, I suspect, certain other costs they may have. I am not giving you all of your hours, but I am giving you quite a number of hours actually.
21. THE APPLICANT: You have done some back-of-the-envelope calculations and come to your view. I am in your hands.
22. MR JUSTICE SULLIVAN: I have to keep all of these things in proportion. I know that as a litigant in person you are going to take longer than a lawyer, but these hours are very large indeed. I think that does a fair amount of justice. What I am going to do is to say that the claimant's costs are to be paid by the defendant up to the time that it conceded that its decision should be quashed, and I summarily assess those costs including the claimant's claim for an hourly rate in the overall sum of £800. Thereafter the claimant's costs ought to be paid by the interested party, and again I will give a round figure for summarily assessing those costs on top of the actual costs so that the total figure is £900. You have quite a lot of your hours paid for. Is there anything else, Mr Lowe?
23. MR LOWE: I can think of nothing more.