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
		7 March 2007

1. THE DEPUTY JUDGE: This is an application for judicial review by Technoprint Plc and Mr Mark Snee in relation to a planning permission granted to Kalon Limited by Leeds City Council on 31 October 2005. Planning permission was given under delegated powers by Mr Redding, the defendant's Principal Planning Officer.
2. The claimants have premises on a site which was formerly Rods Mills in Morely. The interested party (or the recipient of the planning permission), Kalon, operate a paint manufacturing plant on the southern half of the site, and the first claimant, Technoprint Plc, owns and operates a factory on the northern half of the site. Also on the northern half of the site is the former mill owner's house, which is the principal private residence of the second claimant, Mr Snee. Mr Snee, as I understand it, is also the owner of the first claimant business, and in effect, although there are two claimants, the main claimant behind this is Mr Snee.
3. The interested party replaced reverse jet filters to four silos on their premises in 2001 and applied for retrospective planning permission in 2004. The claimants allege that these filters were very noisy and gave cause for complaint. There have been various noise level studies done on which the local planning authority's own officers and the claimant's expert disagree. However, subsequent to the grant of planning permission, a condition attached to the permission requiring noise attenuation measures has now been successful. The second claimant, who, as I have said, in reality is behind this action, provided a statement on 12 February 2006. In this statement he describes how the jet filters were lined with 100 millimetre rockwool insulation in 2006 and says:

"It is fair to say that this insulation drastically reduced the noise, to the point where I could not hear the jet filters, let alone have cause for complaint."

4. Unfortunately, since that time there has been a steady deterioration in the effectiveness of the insulation and the noise from filters has increased incrementally over time. He explains that this appears to be inevitable given the nature of the material, and he says although the noise is not yet at a level which would give anyone cause for complaint, he thinks it will only be a matter of time before the noise level reaches a point where it will be audible and he will have reason to complain. He claims that the planning permission with the conditions does not provide for, or enable, enforcement action to be taken and so he still wishes to proceed with the quashing of the planning application in this case. I understand from the papers that these filters are essential to Kalon in their paint processing.
5. There were effectively three grounds for the challenge of the permission: firstly, no lawful authority for Mr Redding, the Principal Planning Officer, to grant the permission under delegated powers; secondly, the procedure followed by the local planning authority was unfair and/or improper; and thirdly, the decision was based on a material misdirection or factual error or was irrational.
6. I will deal with the facts of the matter first. On 22 September 2005, at the defendant's Plans Panel Meeting, Mr Snee (as I will call him instead of the second claimant) was allowed to address the Panel. The officers had recommended approval subject to conditions limiting the hours of operation, but Members were minded to refuse due to noise concerns at Mr Snee's properties. The officers had the benefit of a report from their own Environmental Health Officers, and Mr Snee had also sought expert evidence on noise generated by the filters and so both these matters were before the Members, and additionally there had been a site visit to the premises of the interested party, which of course were in the vicinity of the claimant's properties.
7. The officers recommended approval; the Members recommended that the matter be refused, or they were minded to refuse and ask the planning officer to prepare reasons for refusal. There was an indication on the resolution by the Panel that, if the scheme were to be resubmitted in the future with noise attenuation provisions, Members would be more inclined to grant planning permission. The claimant says: well, that was a suggestion by one Member of the Panel and there was not a resolution that that should be carried, but in fact that was what appeared on the formal resolution after the meeting.
8. Kalon were informed by letter that, if appropriate noise attenuation measures were agreed, Members may be prepared to accept the replacement filters. Mr Snee was told by e-mail on 27 September that the defendants hoped to go back to the Plans Panel with the application on 20 October 2005. He was also informed that Kalon had been asked to consider such measures, and that if details were put forward by them, these would be presented to the Plans Panel.
9. On 7 October, Mr Snee was told the matter would not come back before the Panel until the applicant's resolved issues of noise pollution. This I think was by e-mail. On 8 October, Mr Snee queried the e-mails he had received, pointing out that the Panel had decided to reject the application, and the matter was only going back, as he understood it, for reasons for refusal. Mr Snee saw the officer's report for the next Plans Panel meeting and the agenda for that meeting shortly before the date of the meeting, which was to be 20 October 2005. He saw the agenda that was published on the web, and he could observe from that that the matter of the filters for Kalon were going to be considered because it set out on the agenda: "Application - Retention of Dust Filters to Silos at Kalon", and then it says: "To consider the report of the Chief Planning and Development Services Officer setting out reasons to refuse the application". But the agenda for that meeting, in particular that proposal, makes it clear that the company has been approached to install and carry out attenuation measures. What they call their Neighbourhoods and Housing advisers (and I will call Environmental Health Officers) have established that noise attenuation measures are achievable, however the actual details would need to be finalised. "It is anticipated that a reduction of noise in the order of 5dB could be achieved and this would normally result in the noise from the reverse jet filters being inaudible from Croft House. These measures could be secured by condition." So it is clear to anyone looking at the agenda and the officer's report, which I was told was attached and would have been seen by Mr Snee, that the Council were indeed being asked to reconsider the matter and look again at the noise issues.
10. Mr Snee did not attend this meeting. He sent the defendants a Council's opinion, which apparently advised that it would be unlawful for the authority to grant planning permission at that meeting because the procedures they followed were unlawful. I note that, attached to the officer's report to the meeting, there was also something called Appendix A, which I now am told was legal advice to the Council about this matter, which is why it says it is confidential and could not be seen by the public.
11. As a matter of fact, Kalon did not submit any proposals for the Council's considerations, which could attenuate noise from the filters, and nothing had been provided by them on 20 October 2005. The minutes of that meeting in October read as follows:

"The Panel were reminded that at the previous meeting, Members had indicated that if the scheme were to be resubmitted in the future with noise attenuation provisions, they will be more inclined to grant permission. Officers from Neighbourhoods and Housing in attendance to advise the Panel on technical issues, informed the meeting that Kalon had indicated that they would be willing to install such measures. It was estimated that with appropriate baffling, the noise emanating from the filters could be reduced by approximately 5dB.

In light of these assurances, Members decided to disregard the report outlining reasons for refusal and instead defer and delegate the matter to the Chief Planning and Development Services Officer for final approval."

Thus, it was resolved:

"To defer and delegate the matter to the Chief Planning and Development Services Officer for final approval, subject to:

(i) Restriction on hours of operation ...

(ii) Noise attenuation measures, details of which to be agreed, to be installed within three months."

12. On 31 October the Principal Planning Officer signed a grant of planning permission, subject to conditions as suggested above, but with a little more detail, namely condition 2, which is the only one I am concerned with:

"Within two months of this grant of planning permission, details of measures to attenuate noise from the filters shall be submitted to the Local Planning Authority, and such measures as shall be approved in writing by the Local Planning Authority shall be installed within three months of approval and shall thereafter be retained."

13. So thus the Members had been given assurances -- these are Members who had been minded to refuse on noise grounds -- but those assurances quite plainly were not based on any evidence or any detailed measures provided by Kalon or by anybody else. They simply had been assured by the Environmental Health Officers that a 5dB attenuation could be achieved. So the condition was granted, as we see, subject to conditions.
14. What I also will add as a matter of fact is that, although condition 2 requested details of measures in two months, no such measures were provided, and indeed by 31 January 2006, no details had been provided. This application by Mr Snee and Technoprint had been made, and in fact nothing at all with regard to noise attenuation measures was done until July 2006. No formal application for approval of conditions was made by Kalon; it was simply a letter saying: Well, we have not been able to get anything from any company to make a sensible attenuation, but we found a way of dealing with it by putting rockwool around the installations".
15. The Chief Planning Officer wrote back saying: "I read what measures you have taken", and on 18 July 2006, he effectively discharged the requirement for the details, but reminded Kalon that the installation shall thereafter be retained. An obvious comment: if there had been no details of what the installation was, how big it was to be, where it was to be, how it was to be retained, it would be very difficult for anyone to come back and try to enforce the retention condition.
16. On the basis of that brief outline of facts, I am going to deal with the claimant's ground 2 in the way in which he argued the case in court, although I think it was ground 3 in the original documents. I am going to deal with ground 2 of the challenge first because, in my view, that challenge has more substance than the other matters raised. In the skeleton argument, it is put like this -- this is the ground of perversity or unlawfulness:

"The Plans Panel rejected the application at the 22 September 2005 meeting because of noise concerns. Accordingly, the only way in which it could rationally have changed its mind is if it could be reasonably satisfied that attenuation measures could be taken which would address these concerns satisfactorily."

17. The claimant's case is that there was no proper evidential basis for the Members' change of mind about noise concerns because indeed no evidence was before the Panel as to what the attenuation measures were to be or the results of those measures in terms of noise reduction. Therefore, say the claimants, the local planning authority could not be satisfied that there will be any noise attenuation measures, nor that they would have the desired affect. That is of course because no details were provided by Kalon, and they had simply said in a letter written the day before this meeting, that they would welcome and consider any noise attenuation measures that were proposed on the basis that this would be significantly beneficial to the environment. But in the letter it says:

"I am sure you will understand I would not be able to make any commitment that reacted purely to concerns that could not be backed and confirmed as best technique by the Panel and Leeds Council to prevent any further non-scientific related complaints."

18. Now, the reason they said that, if one looks at the letter as a whole, is because, as the Environmental Health Officers had considered that there was not a noise problem, so Kalon were somewhat surprised that they were being asked to deal with some sort of attenuation measures. They quote Leeds City Council's own officers, who say that the reverse jet filters have little impact on the overall noise level during the transfer of powder from tankers and the likelihood of complaint from noise is less than marginal when assessed according to BS4142, and, as I think I have mentioned, there was an issue between the planning authority's own officers and the noise expert employed by Mr Snee. All that Kalon was saying is that: "We are a bit surprised you want some measures; we will welcome any that you propose", but they cannot commit themselves to making any measures. So the Members and Mr Snee, going along on the basis that Kalon were going to be invited to put in some measures but never did, were somewhat surprised to put it mildly -- Mr Snee certainly was -- when permission was resolved to be granted. It is said by the claimant that, because there were no details at all from Kalon, just that simple message in the letter, the officers misled the Members in the report because it was misleading and inaccurate to say that Kalon had indicated that they would be willing to install such measures. Well, they had said they would be pleased to see if there were any, but that they could not commit themselves. I do not think that that is particularly material to this case.
19. In my view, the material matter is that there was no evidence whatsoever on which the officers could seriously put forward that there were attenuation measures which would reduce the noise level by 5dB. In the defendant's reply they do not really answer this matter directly, because they accept, as I think Mr Carter had to, that there were no details put in. There was no suggestion from anyone exactly how any amelioration or attenuation measures could be put on the installations. All the Members were told is what the Environmental Health Officer said, that it would be possible to reduce it by 5dB.
20. The resolution, as I have said, then delegated the matter to the Chief Planning Officer, who granted permission subject to conditions which asked for measures. It is quite clear that he had no measures put forward to him as to how the matter was going to be dealt with, and in fact he never did receive any details of any attenuation measures, as I have mentioned, until some time in July 2006. No point is taken on the delay in complying with condition 2, other than to demonstrate the complete absence of any amelioration measures which the Council could have considered either before changing their mind on this planning permission or thereafter. The claimant says that this is not satisfactory, nor is it a satisfactory way in which to deal with these conditions for the simple reason that anyone wishing to see how you can enforce those conditions on noise and what the measures would be has only got a couple of letters which, as I agree with him, are somewhat vague in the extreme because they give no measurements, no details, no drawings, not even a simple sketch as to what was supposed to be dealt with. The letter said that there was to be 100 millimetres of rockwool around the installations.
21. The defendant in relation to that says: the Members had the Neighbourhood and Housing Department appraisal, and they knew what their previous recommendation had been because the minutes would be attached to the October report meeting. The Panel themselves did not need to be satisfied that the interested party was willing to undertake the works because, if works were made subject to a condition, they would be imposed willy nilly on the applicant for permission whether he liked it or not. That, of course, may be right. However, it does not answer the vital question as to what evidence there was before the Members, or indeed the officers, to enable them to change their view from minded to refuse, to delegate the matter to the Chief Planning Officer to attach conditions effectively to grant planning permission, although that is not exactly what they said.
22. Of course, the defendant says: well, the decision of the Plans Panel in October was not perverse, nor irrational, nor vitiated by a material misdirection or factual error, basically the argument being the condition could be imposed. That condition was sufficient to attenuate the noise problem, and they were entitled therefore to change their minds. I disagree with that argument. I think it was wholly perverse for the officers to tell the Members that noise could be reduced by 5dB when there was no evidence before them whatsoever as to how it could be achieved and by what level it would be reduced. It was not based on any material from Kalon, nor on any detailed or any other measures. There was simply a general statement by Environmental Health Officers that they thought there could be a 5dB attenuation. One could say that about almost any mechanical application or any application whatsoever. The important thing to make your decision on is how it was going to be attenuated, and I accept the claimant's submissions that, in this case, there was no evidence whatsoever upon which that decision could validly be based.
23. It is also difficult to see, and I agree again with the claimant, how one can ensure continued efficacy with this condition when nobody knows for certain what the condition requires to be retained. That is because the condition is without any details, plans nor anything in some form of application for approval pursuant to condition 2, merely a letter setting out comments and an answer which is equally just in a letter. In my view, that also means that the enforcement of any condition is extremely uncertain, and that the claimant is quite right to point out the difficulties both with the grant of this permission and any enforcement of the condition attached thereto. I am satisfied that this was a perverse decision through lack of evidence.
24. Also, Members, in my view, were misled because they were told that Kalon were going to do this and going to do that and had really done absolutely nothing. I find for the claimant on that ground, and on that ground alone would quash this planning permission.
25. I will deal with the other matters raised in deference to both counsels' able and concise arguments. One of the other grounds raised by the claimant was that of unfairness in the procedure. What is effectively argued is that Mr Snee, having attended the first meeting, having seen that the Members were minded to refuse, was then not able to properly take part in the reconsideration of the matter in October, and he had been led to believe by letters from individual councillors and from e-mails from the officers that the matter would only go back if details of attenuation had come forward from Kalon. As we know, that in fact did not happen because there were no measures from Kalon. However, he was informed that the matter was coming back in October. He was able to see the agenda and the officer's report, and in my view he could have come back in October if he wished and drawn attention at that meeting to any lack of details or other evidence that could possibly change the Members' minds.
26. The case of BT v Gloucester City Council [2001] EWHC 1001 was referred to in terms of procedural unfairness. That case deals with amendments to planning applications, and it was accepted by Mr Carter for the defendants that, if there had been an amendment to the application being proposed, then of course it would be notified to the public in the normal way. But, says Mr Carter, this was not happening here. All that was to happen here was consideration of whether the effects of the permission, if granted, could be ameliorated, and he said Mr Snee knew full well the matter was being reconsidered because he had been told about the meeting and had sight of the agenda and the report. I accept that is the case, and indeed Mr Snee sent in a legal opinion to that meeting, so he must have been appraised of the fact that something might happen at that meeting.
27. I accept the defendant's arguments on this point as set out in paragraph 14 of the skeleton. This is essentially that Mr Snee was at the meeting of 22 September, and heard the discussions related to the application. He received a copy of the draft minute of the meeting in October. He had an e-mail of 8 October showing that he knew that on 27 September the noise issue was to be revisited, and his e-mail of 2 October to Councillor Fox showed specifically that he knew further consideration was being given to that particular issue.
28. I do not intend to refer to the various e-mails and documents. The e-mails were from individual Members of the Council only. They could not be representing the views of the Plans Panel. But it seems to me that, when Mr Snee had known there was going to be a meeting, it was open to him to attend, although I accept that he could not examine any noise attenuation measures or comment on that. That is because there were not any. But of course if he had been at the meeting, he would have known that and would have been able to point that out to the Members of the Panel.
29. It is then said that he had a legitimate expectation that, having rejected the minded to refuse by the Plans Panel in September, he would be at the very least given the benefit of being able to look at and comment on the attenuation measures that were being proposed. Well, as I have said, there were none that were being proposed, so he would not have been able to do very much about it. All he could possibly have known was that there was going to be a meeting and look at the agenda which indeed he had. The defendants on this point say that there could be no legitimate expectation that they would carry through in October a refusal that he thought they were minded to give, because the defendant would always be free to revisit its earlier resolution. The defendant was entitled to consider whether the imposition of a condition would tackle the noise problem, and also there was no statutory requirement to advertise any proposal to impose conditions or advertise their proposed forms.
30. Similarly, there is no authority which requires such a course of action to be followed, distinguishing the BT case because that, as I have mentioned, was a formal amendment to the proposal, whereas in this case the defendant was simply reconsidering the same application.
31. I do not accept in this case that there was a legitimate expectation that he would have been able to go back and have a full say and debate the particular measures, but quite clearly, having been told of the meeting, he could have gone and made his representations if he wished.
32. The last ground of challenge is that of procedural irregularity. Having looked at the claimant's case on this and the Council's own delegation document, I accept that technically there was a procedural irregularity in allowing Mr Redding, the Chief Planning Officer, to grant the permission. In the Council's delegated powers, it sets out that the Chief Planning Officer may grant permission subject to a number of exceptions. Those exceptions are where the determination of applications follows a written request to the Chief Planning Services and Development Officer by a ward Member concerning an application within his or her ward, and that the application be referred to the relevant Plans Panel. It is not contested by the defendants that that is the effect of their delegation powers, but what was argued by the defendants is that the second resolution was a resolution by the Plans Panel, who decided to disregard the report outlining reasons for refusal, and instead defer and delegate the matter to the Chief Planning and Development Services Officer for final approval. But, says counsel for the claimant, what the Plans Panel did not do is say: we resolve to grant planning permission and leave matters of conditions to the Chief Planning Officer, instead they deferred and delegated the whole matter to the Chief Planning and Development Services Officer, which is contrary to the exceptions (exception (a)) in their delegation document. So, as I say, technically there was a breach, but it is not a ground upon which I would have been prepared to grant relief if everything else in the procedure had been done correctly.
33. So I grant relief to the claimant and quash the planning permission on the basis of irrationality and perversity of the Council's decision, based on a complete lack of evidence for the reasons they then reversed their decision.
34. I then have to consider whether I should in fact grant the remedy sought, which is quashing, and I heard arguments against granting any remedy. I have to say that it might well be a Pyrrhic victory in this case because I am aware of the Environmental Health Officer's report, which of course put the Planning Officers in this case in a very difficult position. I am aware that they did not think there was a problem, and I am also aware that currently Mr Snee accepts that the noise attenuation measures are working. So it may well be that either nothing else is done, or a permission is granted subject to a similar condition, although one hopes they will make a condition that is clear and clearly enforceable, which provides some sort of details of what the amelioration measures to be continued are.
35. It was also raised, very much, as he admits, as a last minute thought by Mr Carter for the defendants, that this installation, having been put in in 2001, may well now be immune from action under the four-year rule. That may be the case, but it was not a matter I had in any skeleton or heard any argument about, and it is not a matter that I am prepared now to consider as to whether or not it should mean I should refuse the relief sought. All I can say is that I cannot predict what the Members' views towards a reconsideration of the application will be. It is not for me to attempt to determine the outcome of the Members' consideration. Suffice it to say that whilst I am doubtful that the claimant will get all that he is hoping to achieve, I cannot say that the outcome is so obviously going to be the same that I should withhold relief.
36. Accordingly, I quash the planning permission of 31 October 2005 and remit the matter back to the defendants.
37. MR GREATOREX: My Lady, I am grateful. There is an application for costs. My learned friend and I had a very brief word about it. I think, in view of that, I shall not say any more until I know what his position is.
38. THE DEPUTY JUDGE: Yes, I suspect, as with the documents that got lost -- I do have the defendant's cost schedule, but I do not have yours, unless you can tell me where it is in this bundle.
39. MR GREATOREX: The extent to which your Ladyship needs to consider this will depend on what my learned friend says, obviously.
40. THE DEPUTY JUDGE: I see. Very well.
41. MR GREATOREX: The application is for the sum on that schedule. I think, with your permission, I will wait to see what my learned friend says before saying any more about it.
42. THE DEPUTY JUDGE: Yes, Mr Carter?
43. MR CARTER: My Lady, there is plainly no issue taken as regards the principle of an order for costs. As regards the amount, no issue is taken in regard to the particular amount. When I spoke to my learned friend earlier, I did formally reserve with him the defendant's position as regards any apportionment depending upon your Ladyship's judgment, but in the light of the way the judgment has been given, I do not take any point in relation to any apportionment. So both on principle and the amount, the defendant takes no point.
44. THE DEPUTY JUDGE: My only query is, do I say: defendant to pay both claimants' costs, assessed in the total sum of £7,490?
45. MR GREATOREX: Yes, my Lady.
46. THE DEPUTY JUDGE: Because it is effectively the same person. Both claimants' costs assessed in the sum of £7,490.58. In 14 days; the normal order?
47. MR CARTER: My Lady, yes.
48. THE DEPUTY JUDGE: Right. Defendants to pay both claimants' costs, assessed in the total sum of £7,490.58, in 14 days.