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 WC2
		20th February 2008

1. MR JUSTICE SULLIVAN: In this application for judicial review the claimant seeks a quashing order in respect of a planning permission granted on 10th March 2006 by the defendant for the following description of development at 53 Thorn Park, Mannamead, Plymouth:

"Demolish garage and redevelop site, including part of rear garden of Thorn Park Lodge, by erection of 4 town houses and rebuild coach house to form residential unit with integral private motor garage and attached garage for adjoining property."

2. Thorn Park Lodge is owned by the defendant. Since 1986 it has been occupied by the claimant, a registered educational charity, as its headquarters. The claimant was established in 1984 to rescue the contents and fittings of the last remaining pharmacy in Plymouth. In addition to using the Lodge building as its headquarters, the claimant created a medicinal garden in the Lodge garden. The Lodge was formerly the entrance lodge to Mutley House, a substantial house standing in large grounds, which was acquired by the defendant by compulsory purchase in 1951 for the purpose of being used as "public walks and pleasure grounds". Mutley Park, to the west of the Lodge, is now a public open space. In 1987 a small triangular area of the Park was added to the southern end of the Lodge garden, leaving the Lodge with a curtilage that is triangular in shape, with the apex of the triangle at the southern tip of the garden and the Lodge building at the northern end of the triangle. To the north of the Lodge is Thorn Park, another public open space. Thus Thorn Park Lodge and its garden are bounded both to the west and to the north by public open space. Along the eastern side of the triangle there is an historic wall. Beyond the historic wall to the east there is residential development fronting on to Thorn Park. To the south is residential development along Mutley Road. A rear lane leads to the Thorn Park Garage, or works, site. The garage site is divided from the garden of Thorn Park Lodge by the historic wall.
3. The application site was in two halves. One half comprised the garage site, which is roughly triangular in shape, the other half was the southern part of the Lodge garden. Part of the garage site (at its northern end closest to the Lodge building) and the whole of the Lodge and its garden are within the Mannamead Conservation Area.
4. On 4th November 2005 officers acting under delegated authority had refused an application by Emeris Ltd for development on the same application site. The development was described as: "Redevelopment of site by erection of 4 terraced houses and a detached dwelling with associated car parking facilities." The reasons for refusing planning permission were as follows:

"HARM TO CHARACTER OF THE AREA

(1) In the opinion of the Local Planning Authority, the proposed development would:

a) result in the curtilage of Thorn Park Lodge being unacceptably reduced, such that the original character and pattern of the area would be harmed, to the detriment of the character and appearance of the conservation area; and

b) because of the design, height and massing of the proposed terraced housing, and the proposed means of enclosure, would be out of character with development in the vicinity, would not recognise local context or the historic value of the site, would be visually harmful and would neither preserve nor enhance the character or appearance of the conservation area.

The proposal is therefore considered to be contrary to policies AHR6, AEV20 and AEV27 of the adopted City of Plymouth Local Plan First Alteration 1996 and policies 25 and 75 of the City of Plymouth Local Plan (1995-2011) First Deposit 2001.

LOSS OF TREES

(2) In the opinion of the Local Planning Authority, the proposal would result in the loss of two mature walnut trees, which are of high amenity value within the conservation area and the wider area. The proposal is therefore considered to be contrary to policy AEV4 of the adopted City of Plymouth Local Plan First Alteration 1996 and policy 72 of the City of Plymouth Local Plan (1995-2011) First Deposit 2001."

5. The planning permission dated 10th March 2006 was challenged by the claimant on six grounds, as follows:

"(1) Absence of a properly constituted application for planning permission;

(2) Bias and/or appearance of bias and/or pre-determination;

(3) Failure to apply lawfully or objectively the requirements of policy AEV27 and Section 72(1) of the Listed Buildings Act 1990;

(4) Failure to take into account material considerations: namely:

i) the loss of a long-term community educational and heritage facility and trees; and

(ii) the absence of any likelihood of a fall-back position arising;

(5) Absence of guidance given to the committee as to the approach to be adopted where, as here, a previously virtually identical application had been refused some four months previously; and Absence of any reasoned decision as to how this application overcame the previous reasons for refusal;

(6) Inadequacy of the statement of reasons given for granting planning permission and generally."

I will deal with each of those grounds in turn.

Ground 1

6. On the planning application form the name and address of the applicant in Box 1A was given as "Emeris Coolart Ltd, Creaven House, Huxley Close, Newnham Industrial Estate, Plympton PL7 4JN." "Stephen Hitch Architect" was named in Box 1B as the Agent to whom correspondence was to be sent. His address was set out. In answer to question number 8 in the application form, "State whether the applicant owns or controls any adjoining land", it was said, "Land from Thorn Park Lodge to be sold to Emeris."
7. The declaration in Box 16, "I apply for planning permission and declare that to the best of my knowledge all the information contained in this application and on the submitted plans is correct", was signed by Mr Hitch on behalf of "Emeris Coolart". He signed a Certificate A in respect of the "Garage Site" and a Certificate B in respect of the "part of garden of Thorn Park Lodge", correctly stating that the owner of that part of the site was Plymouth City Council.
8. Before the application was considered by the Planning Committee on 8th March 2006 one of the objectors, Lorraine Robinson, the Chairman of the Mannamead Conservation Society, informed the planning officers dealing with the application that the name of the applicant "Emeris Coolart Ltd" was not correct. To underline her point, on 6th March 2006 she registered a company with that name and told the planning officers that the company, of which she was now managing director, had not made any planning application in respect of 53 Thorn Park. It was submitted by objectors that the application was invalid and should be withdrawn.
9. The responsible development officer, Karen Gallacher, telephoned the applicant's representative to establish what was the true position and was advised that the proposed development was a joint venture by Emeris Coolart and that the reference to Emeris Coolart Ltd in Box 1A of the application form was incorrect. She prepared an addendum report for the committee meeting which stated (inter alia):

"It has been brought to our attention that the stated applicant, Emeris Coolart Ltd is incorrect. The applicant has confirmed that the name of the company is Emeris Coolart and not Emeris Coolart Ltd. This error does not affect the planning decision process."

10. It has subsequently been established that Mr Hitch was in fact making the application on behalf of two separate companies, Emeris Ltd and Coolart Ltd, who had formed a joint venture to purchase, develop and then sell the site. The joint venture agreement provided that the joint venture would not have any "independent legal personality". Thus, to be strictly accurate, Box 1A and the declaration in Box 16 of the application form should have referred to "Emeris Ltd and Coolart Ltd". However, it is not suggested that Mr Hitch was acting on some frolic of his own. There is no dispute that he was employed by Emeris Ltd and by Coolart Ltd as their agent for the purpose of making the planning application. The address given in Box 1A was the address of Emeris Ltd. It is clear that Mr Hitch's misdescriptions of his principals in Box 1A as "Emeris Coolart Ltd", and in his declaration in Box 16 as "Emeris Coolart", rather than "Emeris Ltd and Coolart Ltd", were innocent mistakes. He had two clients who were the applicants for planning permission. He did not give them their proper names. That is the extent of his mistake. No one was misled and, unlike those cases where there have been errors in identifying the relevant landowners in certificates A and B, no one could possibly have been prejudiced by the misdescriptions.
11. Mr Fookes nevertheless submitted on behalf of the claimant that it was a statutory requirement that an application for planning permission should contain the name and address of the applicant: see section 62 of the Town and Country Planning Act 1990 (as amended), Article 3 of the Town and Country Planning (Applications) Regulations 1988 and the particulars required in Box 1A of the defendant's application form. There had to be an applicant to whom notice of the defendant's decision could be given: see Article 20(1) of the Town and Country Planning (General Development Procedure) Order 1995, and who could appeal in the event of a refusal of planning permission. He submitted that the requirement that there should be an applicant for planning permission was a "jurisdictional" rather than merely a procedural requirement. The misdescription of the applicant was thus a fatal flaw in the application which could not be cured.
12. I do not accept those submissions. There was an applicant (more accurately applicants) in this case: Emeris Ltd and Coolart Ltd. They were misdescribed on the application form by their agent, Mr Hitch, but there is no authority which supports the proposition that such a misdescription must mean that the application was a nullity. On the contrary, in Main v Swansea City Council (1984) 49 P & CR 26, Parker LJ, giving the judgment of the Court of Appeal, applied the dicta of Lord Hailsham LC in London & Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182 at page 187. Parker LJ, having referred to the relevant passages in that judgment, said at page 37:

"In our judgment, the most significant observation in Lord Hailsham's speech, indeed in the whole of the Clydeside case, is that the court must consider the consequences [of a procedural failure] in the light of a concrete state of facts and a continuing chain of events. This recognises that the court looks only not only at the nature of the failure but also at such matters as the identity of the applicant for relief, the lapse of time, the effect on other parties and on the public and so on."

13. As Mr Findlay pointed out in his skeleton argument on behalf of the defendant, the same approach to the significance of compliance with procedural requirements was adopted more recently by the Court of Appeal in R (McKay) v First Secretary of State and Wycombe District Council [2005] EWCA Civ 774, see paragraph 16 per Lord Woolf CJ.
14. While it is important that the applicant for planning permission is correctly identified in the application form so that the local planning authority knows who it has to deal with in terms of processing the application, requesting further information, sending out the notification of its decision etc, these are purely practical issues which did not arise in any event in the present case because the defendant was communicating via an intermediary, Mr Hitch. As a matter of principle, the identity of the applicant for planning permission is, or should be, irrelevant when considering the merits of an application for planning permission, save in those exceptional cases where a personal permission is being sought. Thus, Ms Gallacher's advice to the Committee that the error as to the name of the applicant "did not affect the planning process" was entirely correct. The content of the report (right or wrong, see grounds 3, 4 and 5 below) would be totally unaffected whether Mr Hitch had described his principals, the applicants, as "Emeris Ltd and Coolart Ltd", rather than "Emeris Coolart" and "Emeris Coolart Ltd". The decision whether to quash the planning permission on the ground of some procedural error is a matter for the court's discretion, and there is no possible basis on which it would be appropriate to quash this planning permission because of the mistakes made by Mr Hitch in completing the application form.

Ground 2

15. There is no evidence whatsoever of any actual bias on the part of the defendant and insofar as ground 2 alleged actual bias the allegation should never have been made. Insofar as ground 2 alleges that there was an appearance of bias or predetermination, it is common ground that the relevant test is conveniently set out in paragraphs 38-40 of the judgment of Richards LJ in National Assembly for Wales v Condron [2006] EWCA Civ 1573:

"38. Neither before the judge nor before us was there any disagreement as to the correct legal test; and I have referred already to what the judge said about that test. Nevertheless I think it important to look in a little more detail at what the test involves. It is helpful to start with a passage from Flaherty v National Greyhound Racing Club Ltd (cited above). The court was concerned in that case with a tribunal hearing, but the principles applied were general ones. Having referred to the basic test stated by Lord Hope in Porter v Magill (cited above), Scott Baker LJ continued, at para 27:

'The test for apparent bias involves a two stage process. First the Court must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased. Secondly it must ask itself whether those circumstances would lead a fair minded and informed observer to conclude that there was a real possibility that the tribunal was biased …. An allegation of apparent bias must be decided on the facts and circumstances of the individual case …. The relevant circumstances are those apparent to the court upon investigation; they are not restricted to the circumstances available to the hypothetical observer at the original hearing ….'

39. That emphasis on the circumstances as they appear to the court after investigation finds expression in various ways in the judgment of Lord Hope in Porter v Magill. The claim of apparent bias in that case was based on a statement in which the district auditor, during the course of his investigation into alleged misconduct, announced his provisional findings at a press conference. It was contended that this suggested that he had a closed mind and would not act impartially in the rest of his investigation. In rejecting that contention, Lord Hope endorsed at para 105 what Schiemann LJ had said in the Court of Appeal, to the effect that whilst there was room for a casual observer to form the view after the press conference that the auditor might be biased, the conclusion to be drawn from an examination of the material before the court was that there was no real danger of bias. Similarly, Lord Hope referred in para 104 to strands in the Strasbourg jurisprudence, on the one hand giving some support for the proposition that the standpoint of the complainant was important and on the other hand emphasising that what is decisive is whether any fears expressed by the complainant are objectively justified. He said that the complainant's fears were clearly relevant at the initial stage when the court had to decide whether the complaint was one that should be investigated, but they lost their importance once the stage was reached of looking at the matter objectively.

40. Further guidance is to be found in the judgment of Lord Hope in Gillies v Secretary of State for Work and Pensions [2006] UKHL 2. The claim of apparent bias in that case was directed towards the medical member of a disability appeal tribunal, Dr Armstrong. Lord Hope stated at para 17:

'The critical issue is whether the fair-minded and informed observer would conclude, having considered the facts, that there was a real possibility that Dr Armstrong would not evaluate reports by other doctors who acted as [examining medical practitioners] objectively and impartially against the other evidence. The fair-minded and informed observer can be assumed to have access to all the facts that are capable of being known by members of the public generally, bearing in mind that it is the appearance that these facts give rise to that matters, not what is in the mind of the particular judge or tribunal member who is under scrutiny. It is to be assumed … that the observer is neither complacent nor unduly sensitive or suspicious when he examines the facts that he can look at. It is to be assumed too that he is able to distinguish between what is relevant and what is irrelevant, and that he is able when exercising his judgment to decide what weight should be given to the facts that are relevant.'"

16. Following the grant of permission to apply for judicial review the defendant filed extensive evidence, including witness statements from Mr Barnard, the Head of the Defendant's Planning Service; Ms Gallacher, a Development Officer in the defendant's Development Consents Unit, who had the day-to-day responsibility for processing the application for planning permission; Mr Marsh, the Historic Environment Officer in the Development Consents Unit; Mr Westrope, a chartered town planner with over 30 years' experience who, as manager of the Planning Applications and Compliance Team in the defendant's Planning Department, was in charge of the team in the Development Consents Unit that included Ms Gallacher and Mr Marsh; Mr Jarrold, who is the defendant's Assistant Head of Asset Management; and Councillor Wildy, who is now the Chair of the defendant's Planning Committee, but who was only a substitute member of the Committee at the meeting on 8th March 2006. That afternoon at 1.30pm she had been asked by another councillor, Mrs Aspinall, to take her place at the Planning Committee meeting which was due to start at 4.30pm.
17. There was no application to cross-examine any of these witnesses and their evidence was not challenged. In the light of their evidence the submission that there was apparent bias or predetermination was plainly without any evidential foundation whatsoever, and the claimant on consideration of the defendant's evidence in response to her claim should have withdrawn ground 2 of the challenge in its entirety. Whatever the strength of her own subjective perception of events, there is simply no basis on which, looking at all of the circumstances objectively, any fair-minded observer could have concluded that there was any, let alone any real, possibility that there was bias or predetermination.
18. I say that for two principal reasons. First, the matters relied upon by the claimant in support of the allegation that there was apparent bias or predetermination were based on her perception of the relationship between Mr Jarrold, the defendant's Assistant Head of Asset Management, and the planning officers responsible for processing the planning application. It was submitted in Mr Fookes' skeleton argument that:

"In this case, Mr Jarrold, the Asset Management Officer, and Cllr Purnell the portfolio holder for Asset Management appear to have pursued their responsibilities for land disposal and revenue-raising enthusiastically and to have exerted undue influence to the detriment of the decision-making process. There has been no clear-cut separation of responsibilities allowing the Planning Committee to reach a soundly-based and uninfluenced decision on the third application. Development Control has or appears to have allowed a proper consideration of the conservation issues to become subservient to the aspiration of the Defendant's Asset Management department."

19. These allegations are expressly denied by Mr Jarrold and by all of the planning officers concerned. Once the full text of the relevant documents is considered, rather than the selective extracts set out in the claimant's witness statement, it is plain that there was a clear-cut separation of responsibilities between the defendant's Asset Management function and its Development Control function; that all of the officers were well aware of that separation; that they did their best (unfortunately without success) to explain it to the claimant; and that in all their dealings with the application for planning permission, the officers responsible for development control, Ms Gallacher, Mr Marsh, and Mr Westrope, were giving their own, conscientiously held, professional views. The allegations made in the claimant's skeleton argument are very serious. They amount, in effect, to allegations of professional misconduct. Such allegations should not be advanced by counsel unless there is a proper evidential basis for them. I will return to that aspect of the matter in due course.
20. The first reason why the allegation that there was apparent bias or predetermination is hopeless is that, although the decision on a planning application of this kind would normally have been taken by officers acting under their delegated powers, in this particular case, following representations by the Ward Member, Councillor Stark, the application was referred to the Planning Committee by the then Chair of Committee, Councillor Bray, after consultation with Mr Westrope.
21. At the Committee Meeting Council Stark was allowed to speak for three minutes, as was the claimant. Unfortunately, she did not time her address and she was unable to complete it before her three minutes expired.
22. Although the claimant says in her witness statement that Councillor Wildy "appeared determined to grant planning permission" there is nothing to suggest that she, or any of the other members of the Committee, might have been biased or that there was any predetermination to grant planning permission.
23. As a last-minute substitute, Councillor Wildy had some two hours to prepare for the meeting. When she says in her witness statement that she did not have the opportunity to discuss the Committee reports with any other member or with the officers and that she did not attend the meeting with her mind made up, there is absolutely no reason to disbelieve her. There was a debate. Some of the councillors were in favour of the application, some were not.
24. Although the claimant contends that the Labour councillors voted "en bloc" to grant planning permission, as Councillor Wildy points out if that was the case, it was not the result of any pre-Committee meeting or discussion in caucus. This particular application was not contentious in any party political sense. Since there is no evidence to support the assertion that there was any apparent bias or predetermination on the part of the councillors who actually took the decision, the claimant's criticisms of the officers' conduct falls by the wayside. However, it would not be right to allow the claimant's perceptions of the officers' conduct to go uncorrected.
25. The second reason why ground 2 is fairly described as hopeless is the officers' own conduct in refusing, on 4th November 2005 under delegated powers, the earlier application for planning permission that had been made by Emeris Ltd. That refusal does not suggest that the officers responsible for development control were unduly influenced by Mr Jarrold, by Mr Hitch, or indeed by anybody else. They were prepared to, and did, engage in pre-application discussions with both Mr Hitch and Mr Jarrold. The latter represented the defendant in its capacity as landowner of part of the site, and he wished to maximise the defendant's capital receipts by disposing of its non-operational property assets, such as Thorn Park Lodge. To that end, like any other landowner wishing to maximise the value of his land, he very sensibly sought the informal views of the planning officers responsible for development control as to the prospects for the development of Thorn Park Lodge in conjunction with the adjoining garage site, which had been acquired by a third party (Emeris Ltd). In those discussions it was made very clear to him that the development control officers would not support any application which involved the demolition of the Lodge building itself. However, both Ms Gallacher and Mr Marsh were of the opinion that a residential development of the garage site and part of the garden of the Lodge would be acceptable in principle, provided it left the Lodge with a sufficient curtilage and provided the design of the new housing was such as to preserve or enhance the character or appearance of the conservation area.
26. There could be no doubt whatsoever, in the light of the unchallenged evidence in their witness statements, that in expressing those views they were giving informal pre-application advice, and that in doing so they were giving their honest, professional opinions as to what kind of development would or would not be likely to be acceptable to the defendant. It was well understood by all of those concerned that this informal advice was provisional, in the sense that when a formal application for permission was made it would have to be considered in the light of all material considerations, including, importantly, any objections in response to consultation, and might well have to be referred to members for decision (as indeed happened on 8th March 2006).
27. After the refusal of the first application on 4th November 2005, a second application was made which was withdrawn because, again, the officers responsible for development control indicated to Mr Hitch that they would not support it. Undaunted, Mr Hitch tried again and at a meeting on site on 9th January 2006 Mr Westrope, Ms Gallacher, Mr Marsh and Ms Turner (the tree officer) met Mr Hitch to discuss whether his proposals for the site could be improved. Ms Gallacher explains in her witness statement:

"There was a full and frank discussion about the reasons why the previous proposals had been unacceptable. I and the conservation officer explained the main concerns. These were: the curtilage left to the Lodge, the height/massing of the terrace, the design and the loss of the walnut trees. The meeting progressed to the site at Mr Westrope's request. On site there was discussion of the merits of both of the walnut trees. Jane, the Tree Officer, agreed to support the loss of one of the trees as it was a poor shape and of limited amenity value. The position of the boundary was discussed, and it was agreed that the curtilage for the Lodge needed to be increased. Paul Westrope advised the applicants that he would be able to support the design and height of the proposed development now that he had seen it in context and providing the information regarding the height could be supported with section drawings. As ever, this advice was given without prejudice. Paul was aware that I still had concerns regarding the development."

28. Mr Westrope says in his witness statement:

"At this meeting, both Karen [Gallacher] and Alex [Marsh] expressed their reservations about certain design elements of the scheme and the proposals to deal with them. I decided to keep an open mind during the meeting. On my request, we adjourned from the site hut to look at the actual site. This was because I needed to assess what was being said by all participants in the meeting and I had not had an opportunity to look at the site properly before the meeting started.

5. Upon looking at the site, and in particular the relative heights of nearby land and buildings (including Thorn Park Lodge), it became clear to me that, on balance, a scheme could be acceptable and I made this opinion clear to all present. The scheme that was subsequently lodged was in accordance with the discussions and upon consideration of them I considered them acceptable.

6. I would like to state categorically, in case it is claimed otherwise, that my opinion about the scheme had nothing whatsoever to do with the Council's land ownership and financial aspects or similar considerations — which are irrelevant to planning. Instead, it was entirely and solely based on my assessment of the planning considerations."

29. Since it will be relevant in respect of another ground of challenge, I will read the next paragraph of Ms Gallacher's witness statement:

"7. Following the meeting, under my direction Karen Gallacher drafted the officer's report ... The views expressed in that report as to the acceptability of the development as to design (and other matters) are mine and were approved by Clive Perkin, Head of Development Consents. I was aware that Alex Marsh and Karen had reservations but felt that my judgment, made amongst other matters from greater experience, was to be preferred. I considered the report to be correct at the time it was written and I still consider it to be correct. It is not unusual for there to be differences of opinion amongst officers involved with an application, but it is for the relevant senior officer, in this case me, to determine the nature of the report and its contents. It would be unusual in any Council report to spell out such differences and the report did not do so in this case. Members need clear advice; a description of differing views upon any subject within the planning department would not be of assistance. They are well aware that the views expressed in any officer's report represent the considered view of the relevant senior officer but do not necessarily represent the uniform view of the planning department. Design was highlighted as an issue and a concluded officer's view on it was given."

30. In his witness statement Mr Marsh confirms that he explained his views at the site meeting and although he knew Mr Westrope did not agree with them, he felt that Mr Westrope was reasonably entitled to come to a different view.
31. Although Ms Gallacher and Mr Marsh had been in communication with Mr Jarrold and Mr Hitch in respect of the earlier applications, there is no suggestion that Mr Westrope had been actively involved in the earlier discussions. Yet it will be noted that it was he, not the officers who the claimant believes were unduly influenced by Mr Jarrold, who concluded that the third set of proposals was acceptable. Mr Jarrold's influence and Mr Hitch's blandishments had not succeeding in persuading either Ms Gallacher or Mr Marsh. Mr Westrope was well aware of their views but disagreed with them, and they accepted that he was entitled to do so, not merely because he was their senior officer, but because they acknowledged that there was room for a genuine divergence of professional view.
32. The picture that emerges, very clearly indeed, from the totality of the evidence is that of a number of Development Control Officers, each expressing his or her own honestly held professional view as a chartered town planner without fear or favour, and certainly without any regard to the defendant's interest as landowner of Thorn Park Lodge. The allegations that Mr Jarrold exerted undue influence, that there was no clear-cut separation of responsibilities and that conservation issues were allowed to become subservient to the aspirations of the defendant's Asset Management Department are devoid of substance and should not have been advanced in the absence of any evidence to support them.

Ground 3

33. Policy AEV27 is in these terms:

"Mannamead - additional non residential and institutional type uses such as hotels will not be permitted where an undue concentration of such uses already exists or where the residential character of a locality would be adversely affected. Reference should also be made to Policies AHR20 and AHR22. Development will not be permitted which involves the sub-division of curtilages resulting in material change in the density or form of development or needless demolition of curtilage boundaries."

34. Policy AEV20 is in substantially the same terms as the statutory requirement in section 72(1) of the Planning (Listed Buildings and Conservation Areas) Act 1990: that all development in a conservation area should preserve or enhance the special character or appearance of the conservation area. Policy AEV20 adds a number of riders, for example that new build development should be of a high standard of design and respect the character of the conservation area.
35. The officer's report for the meeting on 8th March 2006 drew members' attention to the fact that among the representations objecting to the application for planning permission were the following:

"The proposals are overdevelopment, out of character and harmful to the character of the conservation area and the wider area in terms of height, design and materials; the development would result in the loss of medicinal garden, part of the park, trees, wildlife, historic wall, green space, community facility, and green outlook from nearby residential property and Mutley Park; contrary to policies POL77, POL75, AEV27, POL69 and PPG 15; doesn't preserve or enhance the conservation area; infill development that would split the curtilage of a property in the conservation and therefore be out of character; garage is not viable therefore its loss is no benefit; level changes would result in development harmful to the conservation area; impact on Thorn Park Lodge; ..."

36. Having considered whether the principle of residential development would be acceptable on the garage part of the site and on the garden part of the site (see below), the report said:

"The garden also falls within the conservation area, for which policies AEV27 and AEV20 would apply. Previous schemes have been considered to be unacceptable in respect of the conservation area, as they have reduced the garden of the Lodge too much, and thereby changed the character of this part of the conservation area. This scheme has increased the amount of garden that would be retained by the Lodge to a level that is characteristic of this part of the Conservation Area. The density of development, although high, has not been considered to be harmful because of the density of the existing garage development on the site."

37. Under the heading "Design" the report said:

"The site falls partly within the conservation area, which means that the scheme must preserve and enhance the area, and design is therefore important. It also means that conservation area consent is required for the demolition works.

One of the main concerns with this scheme has been the overall height and massing of the terrace of 4 dwellings in relation to the surrounding properties. This issue has been raised in a number of the letters of objection. This application has been submitted with a longitudinal section to illustrate this relationship. The ridge line of the proposed buildings would be only slightly higher than the ridge of Thorn Park Lodge and level with the eaves of properties in Thorn Park and Mutley Road. The buildings are therefore considered to be acceptable in terms of height and massing in this location, as they are level with or below the ridge height of nearby property.

The elevation design, for the terrace, has been amended. It is a modern design, but the set back of the buildings together with use of stone on the ground floor with render at first floor lends a mews feel to the design. This approach is considered to be appropriate for this location within the conservation area on a rear lane. The elevation facing the park has a very contemporary design, and relates well to its parkland setting. Further details are required regarding the means of enclosure to ensure their acceptability in the Conservation Area.

The detached unit number 5 strongly reflects its original use as a coach house, and is acceptable in terms of design, and its location within the conservation area.

The design is therefore considered to relate well to the conservation area, and comply with policies AEV31, AEV20, AHR6, POL25 and POL75, in this respect."

38. Although the distance between the Lodge building and the northern elevation of the proposed residential terrace remained constant in all of the applications, the first application which had been refused had left the Lodge with a curtilage of 7.5 metres. The third application, which was being recommended for approval, increased the depth of the curtilage left to the Lodge to 10.5 metres. All of the planning officers, including Mr Marsh, had been satisfied, rightly or wrongly, it was a matter for their professional judgment, that the amount of garden that would be left for the Lodge by the third application would not be harmful to the Lodge or the conservation area. Although it was submitted on behalf of the claimant that the defendant misconstrued policy AEV27, it is important to appreciate that the policy does not prohibit any subdivision of curtilages within the conservation area. This was not a case of a "needless" demolition of a curtilage boundary. The historic wall between the garage site and the Lodge garden had to be demolished if the development was to proceed. The question was whether the subdivision of the Lodge curtilage would result "in a material change in the density or form of development". Since the policy must not to be read in isolation, or in the abstract, it is clearly concerned to prevent changes in density or form that would be harmful to the character or appearance of the conservation area. Those were the very issues which were addressed in the report (see above). The claimant disagrees with the officer's conclusion, but the submission that the report did not engage with Policy AEV27 is not made out.
39. Mr Fookes criticised the report on the basis that section 72 of the 1990 Planning (Listed Buildings and Conservation Areas) Act was not mentioned and the statutory test was not correctly set out. There was no need to refer to section 72. What was important was that the Committee should be reminded, insofar as it was necessary to do so, of the test to be applied in a conservation area. In fact, the report pitched that test rather too high. It was not necessary for the scheme to "preserve and enhance the conservation area", it was sufficient that either preserved or enhanced the character or appearance of the conservation area. The distinction is of no consequence in the present case because the attention of members was specifically focused on the importance of design. After considering the concerns that had been expressed in respect of previous designs, the report concluded that the design now put forward was considered "to relate well to the conservation area" and to comply with, inter alia, Policy AEV20, which effectively incorporated the statutory test in any event.
40. In support of his submissions under ground 3 Mr Fookes referred to a "report" by Mr Marsh that had not been referred to in the officer's report. On 21st February 2006, that is after the meeting on 9th January 2006, Mr Marsh sent an e-mail to Ms Gallacher. So far as relevant the e-mail said:

"Karen - this scheme has been a long time in negotiation however it still has unresolved issues. These are

Footprint/Massing/height - the building's footprint and massing is generally ok. However the section identifies the problem of height in context of the topography and the existing buildings including the Lodge, Coach House and the adjacent 2/3 storey dwellings. In my view based on this section the proposed terrace of dwellings will be too tall and as a result out of context with its surroundings - I would suggest that 2 storey with a low ridge or flat roof would be a more appropriate roof height.

Mews Design - this design proposal does not respond to the rear lane coach House/mews context that exists - other than the retention after lengthy discussion of the existing coach house at the bottom of the lane. This should have served as a design influence - however the resulting elevations on the rear lane lack a response to the context and appear as a standard terrace with nothing to respond to the special characteristics of the rear lane. The elevation approach creates an architectural language which I consider detrimental to the character of the conservation area and does not respond to its context. The front elevation has domestic scaled and little effort is made to use the opportunity for larger openings/timber doors or other similar semi industrial features to make this elevation provide a more appropriate response to the working cobbled lane."

The e-mail then dealt with two other matters: materials and landscape elements.

41. It will be noted that Mr Marsh was not suggesting that the principle of residential development incorporating part of Thorn Park Lodge garden was inappropriate, nor was he objecting to the proposal that there should be four town houses and he was not concerned with their footprint or massing. The difference of view between himself and Mr Westrope was confined to the height and the design of the proposed houses, the issues discussed in the report. It would seem that his concerns were shared to a greater or lesser extent by Ms Gallacher.
42. Mr Marsh, however, was not an external consultee. Like Ms Gallacher and the tree officer, Ms Turner, he was part of the team managed by Mr Westrope. As explained in Mr Westrope's witness statement (above), the report expressed his views and were approved by his superior, Mr Parkin, the Head of Development Consents. The practice adopted by the defendant in this respect was not peculiar to this application or to this local planning authority. Mr Barnard explained in his witness statement:

"... there is nothing unusual in the manner in which this application was dealt with or as to how the report was drafted. Both members and I expect reports to present a clear view and whilst differences of opinion within the team might be referred to in the report to members in particular cases that would be very unusual. Members are aware that the guidance they receive does not necessarily represent the unanimous view of my department but it is the considered view of the officer responsible for the report. The report in this case was no different and the comments raised did not require to be raised in the report. This is a standard approach adopted in authorities throughout the country."

43. Despite the fact that this evidence was not challenged, Mr Fookes submitted that there was nevertheless an obligation on the defendant to refer to the difference of view between Mr Marsh and Mr Westrope in the report. He produced no authority to support that submission and I do not accept it, largely for the reasons given by Mr Barnard. There will often be differences of professional opinion among planning officers responsible for assessing the merits of a planning application. A report prepared for the assistance of members will reflect the professional judgment of the officer responsible for the report (who may or may not have been its author). Members will be well aware that he or she will have formed that professional judgment having considered the, possibly conflicting, views of colleagues within the department. There is no reason to impose a legal duty on the responsible officer to identify differences of view within the planning department.

Ground 4

44. Before considering the claimant's submissions under this ground, it is helpful to set out the following passage from the judgment of Judge LJ in Oxton Farms and another v Selby District Council and another (18th April 1997):

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms of the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

45. The claimant's criticisms of the officer's report in ground 4 of the challenge fall very far short of demonstrating that the report was significantly misleading about any material matter. The report stated that the objections to the development included the loss of the medicinal garden, the loss of a community facility and the loss of tress. In respect of the loss of trees, it is said that when asked by members of the committee how many trees would be lost, the officers were unable to answer. It will be remembered that the second reason for refusal on 4th November 2005 had been the loss of two mature walnut trees. At the site meeting on 9th January 2006 Ms Turner, the tree officer, had said that the loss of one of those trees would be acceptable. The report said:

"There are a number of trees on the site most of which are not significant in terms of the wider amenity of the area. There is, however, a mature walnut that is to be retained that is of high amenity value. Conditions are to ensure that this tree is not damaged during construction. There is no objection from the tree officer, and no conflict with Policy AEV4."

46. I have already set out the passages in the report which deal with the loss of part of the Lodge garden, both in terms of the effect on the Lodge and in terms of the loss of a community facility. The claimant considers that more should have been said, but that does not mean that the report was "significantly misleading" in respect of those issues.
47. The submission that there was a failure to properly consider the fallback position is based on one sentence in a part of the report which considers the principle of development:

"Local residents, and the Local Planning Authority, have previously supported the loss of the garage because of the disturbance it has generated in the past. The building has been used for body repairs for cars, which is a general industrial use. The site is very close to residential property; loss of employment land is therefore acceptable in this instance. There is no conflict with policy AER2. One of the letters of objection reports that, because of its location, the garage would not become a viable garage again: however, this assertion cannot prevent such a B2 use returning in the future. The majority of the buildings fall outside the conservation area, and make little contribution in terms of the character of the area. The principle of redevelopment of the garage site is supported."

(For ease of identification I have underlined the relevant sentence.)

48. This paragraph in the report is then followed by a paragraph that considers the acceptability of residential development in principle on the garden part of the site. That paragraph makes it clear that there had been considerable objection to the loss of part of the garden and the boundary wall.
49. It can be seen that this was not a case where the officers were supporting the principle of redeveloping the garage site residentially, contrary to established policies, only because they felt constrained to do so by the prospect of the resumption of a B2 use. Unsurprisingly, since the garage site was in a conservation area and was bounded by residential development to the south and the east, there were powerful reasons why the principle of residential development on that part of the site was supported. Indeed, it can be seen that from the report that outline planning permission for residential development on that part of the application site had been granted in 1992 and renewed in 1995. If the garage was not to be redeveloped residentially, it is difficult to see how realistically the return of a B2 use could have been prevented. There is a dispute on the evidence as to when the garage site was last used as such. Ms Gallacher's recollection is that it was still operating in 2002. On this basis the view expressed in the report was reasonable. In the absence of any intervening use it is unlikely that the B2 use would have been abandoned by non-use since 2002.
50. However, for the reasons set out above, this was not a case where the "fallback" position in respect of the garage site was at all determinative as to whether the principle of residential redevelopment on that part of the site was acceptable.
51. Although not raised in the claimant's original grounds of challenge, in amended grounds submitted in October 2006 after permission to apply for judicial review was granted on 13th September 2006, the claimant added a third material consideration which it contended the officer's report had failed to consider: namely the "true status of the land".
52. As mentioned earlier, the Lodge had been acquired as part of the Park by compulsory order by the defendant for use as "public walks and pleasure grounds". It was contended on behalf of the claimant that this should have been drawn to members' attention, and that the garden part of the application site should have been referred to as public open space, there having been no appropriation of the land by the defendant to any other purpose.
53. In my judgment this criticism confuses the legal status of the land, which remains public open space unless and until appropriated under the Local Government Act 1972 for any other purpose, with its actual use, and designation in the relevant planning policy documents. The report was concerned with the actual use (rather than the legal status) of the land as a garden for the Lodge and as a community facility. The effect, in land use terms, of the proposed development "on the ground" on those two aspects of the use of the garden were discussed in the report:

"The site also includes part of the garden of Thorn Park Lodge, which is all within the conservation area. There has been considerable objection to the loss of part of the garden and the boundary wall. It is a garden that has been established by the Pharmacy Trust and is a community facility. In assessing whether the loss of part of the garden is acceptable, it is necessary to consider the loss of part of the community facility, the division of the curtilage in terms of the character of the conservation area and the impact on the Lodge, and the status that this part of the garden has in policy terms.

In policy terms, most of the garden area that would be developed is within an Established Residential Area. The very end has been included as Greenscape, as it is still shown on the Local Plan as being part of the park, whereas it has now been included within the garden. In these terms therefore the principle of residential development would be acceptable."

54. There then follows the passage dealing with Policy AEV27 (which I have set out above), and the report concludes on this issue:

"The proposal would result in the loss of part of the community facility that is provided by the Trust. The scheme would however, leave [a] significant area of garden and the buildings, and therefore refusal on these grounds is not considered to be justified."

55. While it is true that as a matter of law if the defendant wishes to dispose of land that has been acquired for public open space for residential use there will need to be an appropriation for that purpose, and that appropriation may well require the consent of the relevant government department, that issue is for another day. Land is not infrequently subject to legal constraints such as restrictive covenants, but it is well established that such legal constraints are not relevant for the purpose of deciding the merits of a planning application. There is in any event an air of unreality about the claimant's submission, since in practice the garden has not been part of the Park, from which it is separated by a wall, since it has been occupied by the Trust. Its function "on the ground" was as a community garden and it was the impact on that function, therefore, that the report properly addressed.
56. Mr Fookes submitted that the concepts of Greenspace and Established Residential Area were introduced in the First Deposit Local Plan 1995-2011, which has not proceeded to adoption because it will shortly be superseded by the new Local Development Framework. Those descriptions were not shown in the Adopted Local Plan 1996. There is no reason to suppose that the Planning Committee, who would be expected to use their local knowledge of the Adopted and the First Deposit Local Plans (see per Judge LJ above), would have been mislead into thinking that the concepts of Established Residential Area and Greenspace had been included in the former rather than the latter. They were reminded of the status of the First Deposit Local Plan at the end of the report:

"The City of Plymouth First Deposit Local Plan (1995-2011) (FDLP) was published for consultation in December 2001, and was placed on formal deposit in January 2002. On 18 March 2003, in anticipation of the Government's proposed reform of the development planning system nationally, the Council's Executive Committee resolved not to proceed to Revised Deposit stage, but instead to move towards producing a Local Development Framework (LDF) for Plymouth. Production of the LDF is in its early stages.

However, it is important to recognise that the Council has not abandoned the FDLP. For that reason, both the Adopted City of Plymouth Local Plan 1996, and the 'emerging' FDLP continue to comprise 'material considerations' in decision making. Paragraph 48 of PPG1 states that the weight to be given to the FDLP policies and proposals will increase as successive stages of its progress towards adoption are reached, in this case as it undergoes the process of being embodied into the LDF."

57. Mr Fookes submitted that the boundary of the Greenscape policy was inaccurately drawn in the First Deposit Local Plan because the whole of the garden should have been included within the Park. But that submission is based on the legal status of the whole of the Lodge curtilage as public open space, rather than its use for some 20 years as a garden community facility, physically and functionally separate from the public open space in the remainder of the Park.
58. The report considered the impact of the development on both the former and the latter. I have set out the passage dealing with the impact on the community garden above. So far as the impact on the Park is concerned, the report said this:

"None of the site falls within the park. Part of the garden was previously park and is shown on the deposit Local Plan as Greenscape. Even if this small area is classed as park/greenscape, its loss could not be said to cause significant harm, due to its size, location and existing use. Concern has been expressed that people in the dwellings would overlook the play park, which could be detrimental to the children's safety. This is not sufficient justification for refusal of development. Parks are public and not private places, and the surveillance of the park would actually be increased by the development. Concern has also been expressed that the development would spoil the view from the park. The current view from the park is over the garden of Thorn Park Lodge to the rear of the properties in Thorn Park. Whilst pleasant, it is not an important vista, and it is not considered that the proposed development would be harmful in terms of the outlook from the park."

59. In my judgment the report fairly drew members' attention to all of the "material matters" in respect of this application.

Ground 5

60. I can deal with this ground quite shortly because the report listed the earlier planning permissions and refusals, including the refusal of 4th November 2005. Members were told at the outset of the report that:

"There have been a number of schemes in recent years for the residential development of the garage site. Whilst this has been supported, in principle, no suitable proposal has been forthcoming."

61. I have set out the reasons for refusal of planning permission on 4th November 2005 above. The report explained that while previous schemes had been:

"... considered to be unacceptable in respect of the conservation area, as they have reduced the garden of the Lodge too much, and thereby changed the character of this part of the conservation area. This scheme has increased the amount of garden that would be retained by the Lodge to a level that is characteristic of this part of the Conservation Area."

This dealt with reason 1(a) of the refusal of permission in 2005.

62. In respect of reason 1(b) — design, height and massing — members were told that the design had been amended and was "considered to be appropriate for this location within the conservation area on a rear lane" (see the passages from the report set out above). Height and massing were specifically considered by reference to a longitudinal section to illustrate the relationship of the proposed development with neighbouring property.
63. Although the report does not say so, the height of the proposed dwellings had been reduced by comparison with the application that had been refused. The report compared this (reduced) height with the ridge line of Thorn Park Lodge and with the eaves and ridge heights of nearby properties in Thorn Park and Mutley Road. The conclusion was that the result was "acceptable in terms of height and massing".
64. Turning to the third reason for refusal in November 2005, the report recorded that the tree officer did not raise any objection to the loss of one of the two mature walnut trees (see the passage set out above). The report concluded:

"To conclude, the development now proposed in this application is considered to adequately overcome the problems of previous schemes and is considered to be acceptable for this site. It is recommended that conditional planning permission be granted."

65. The claimant vigorously disagrees with that conclusion, but on a fair reading of the report as a whole it is clear why officers were satisfied that the earlier reasons for refusal had now been overcome.

Ground 6

66. Again I can deal with this ground very shortly because I am satisfied: (a) that the summary reasons comply with the requirements of Article 22 of the Town and Country Planning (General Development Procedure) Order 1995 (as amended); and (b) that even if the summary reasons did not comply with Article 22, it would not be appropriate to quash the planning permission on that ground alone: see the decision of the Court of Appeal in Smith v Cotswold District Council [2007] EWCA Civ 1341, per May LJ at paragraphs 13 to 16 and the Master of the Rolls at paragraph 18.
67. The summary of reasons for granting permission was as follows:

"Having regard to the main planning considerations, which in this case are considered to be: impact on conservation area, neighbours and the highway, the proposal is not considered to be demonstrably harmful to local amenities. In the absence of any other overriding considerations, and with the imposition of the specified planning conditions, the proposed development is acceptable and complies with the following policies of the Devon Structure Plan (2001-2016) 2004, the City of Plymouth Local Plan First Alteration 1996, the City of Plymouth Local Plan (1995-2011) First Deposit 2001 and relevant Supplementary Planning Guidance, Government Circulars and Planning Policy Guidance Notes as follows: ..."

The relevant policies are then listed, with a brief indication of their subject matter.

68. This was not a case where no reasons were given, as in R (Wall) v Brighton & Hove City Council [2004] EWHC 2582 (Admin). Nor was it a case, as in R (Tratt) v Horsham District Council [2007] EWHC 1485 (Admin) where the summary reasons merely stated that "the proposal is consistent with the provisions of the development plan", without indicating what those provisions were.
69. Mr Fookes submitted that the reasons in the present case are substantially the same as those given in R (Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin). In that case the summary reasons for granting planning permission were as follows:

"The decision to grant planning permission has been taken having regard to the policies in the approved Gloucestershire County Structural Plan, the Adopted Forest of Dean District Local Plan Review, and to all relevant material considerations including Planning Policy Guidance Notes, Planning Policy Statements and Supplementary Planning Guidance.

The following policies in the approved Gloucestershire Structure Plan are relevant to the decision: NIL.

The following policies in the Adopted Forest of Dean District Local Plan Review are relevant to the decision: [a number of policy numbers are then given].

The development is considered to comply with those policies and guidance notes and it is not considered that it will cause material harm to the amenities of the area."

Collins J added that it was:

"... to say the least unfortunate that no reference is made to (R)FBE 10, a highly relevant policy."

70. Comparing different summary reasons is unlikely to be of much assistance because the adequacy of reasons, whether they are a summary of the reasons for granting planning permission or the full reasons for refusing planning permission, will always depend on the particular facts of the case in question In the present case the summary of the defendant's reasons did not simply recite a series of policies. It identified the "main planning considerations" which were said to be the impact on the conservation area, neighbours and the highway. The last two of those considerations have not featured in this challenge to the grant of planning permission, but they were dealt with in the officer's report.
71. The first consideration, the impact on the conservation area for a variety of reasons, was by far the most important issue addressed in the report. No doubt the summary reasons might have been better or more fully expressed, but that is not the issue. The question is whether summary reasons were provided sufficient to comply with Article 22. In my judgment that was done.
72. In the event that I am wrong about that, and considering the issue of discretion, there is no suggestion that the claimant or anyone else has been left in any real doubt as to why planning permission was granted. If the summary reasons had left anyone in any genuine doubt, then their doubts would have been resolved on a fair reading of the officer's report. In these circumstances, even if the summary reasons were inadequate, it would not be appropriate to quash the planning permission on the ground of that inadequacy alone.
73. For these reasons, the challenge to the grant of planning permission must be dismissed.
74. MR FINDLAY: I am grateful to your Lordship. My Lord, the defendant would seek its costs to be assessed.
75. MR JUSTICE SULLIVAN: Yes. It was certainly more than a day, was it not, so detailed assessment.
76. MR FINDLAY: Absolutely.
77. MR JUSTICE SULLIVAN: What do you have to say about that, Mr Fookes?
78. MR FOOKES: I cannot resist that.
79. MR JUSTICE SULLIVAN: Then the application is dismissed. The claimant is to pay the defendant's costs, those costs to be the subject of a detailed assessment unless otherwise agreed.
80. Anything else? Thank you very much indeed.
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