QUEEN'S BENCH DIVISION
Royal Courts of Justice
B e f o r e :
|THE QUEEN ON THE APPLICATION OF PARK PHARMACY TRUST||Claimant|
|PLYMOUTH CITY COUNCIL||Defendant|
|EMERIS COOLART||Interested Party|
Wordwave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J Findlay (instructed by Plymouth City Council, Legal Services. Civic Centre, Plymouth PL1 2AA) appeared on behalf of the Defendant
Crown Copyright ©
"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."
"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."
"(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.
"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."
"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."
"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  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.'"
"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."
"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."
"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."
"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."
"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."
"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; ..."
"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."
"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."
"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.
"... 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."
"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."
"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."
"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.)
"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."
"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."
"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."
"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."
"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."
"... 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.
"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."
"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.
"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."