England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Leeds Combined Court The Courthouse 1 Oxford Row Leeds LS1 3BG
		28th October 2009

His Honour Judge Grenfell:

1. Mrs Sakina Suraya Moghul, the claimant, lives in a detached house (no 727) overlooking the main Leeds Road in Bradford. There is a building opposite known as the White Bear Inn, 1222 Leeds Road. In 2008 a Mr Sadaqat Ulkaq unsuccessfully applied for planning permission for a change of use from car park to car wash. The premises changed hands and the new owner, Mr Jarair Malik, the Interested Party, submitted an application for planning permission to develop the site into a 3 storey multiple unit shopping bazaar with café and restaurant. That application was received on the 7^th July 2008, although the document in support is dated 1^st August and was validated 4^th August 2008 (08/04399/OUT).
2. Mrs S S Moghul with the help of her daughter, Ms Rizwana Moghul, has expressed concern that her right to light may well be affected by a 3 storey building across the road from her house. For all the documentary evidence that has been submitted, that concern seems to be at the heart of the matter.
3. On the 7^th April 2009 Mr Malcolm Joy, planning officer with the defendant Bradford Metropolitan District Council, submitted his Planning Officer's Report, following which the decision was made granting Outline Planning Permission on the following day, 8^th April 2009, the application being determined by officers under delegated powers. The terms of the permission are:

'Construction of new shopping bazaar with cafe / restaurant. Comprising of 15 retail units over 3-storey building with basement car parking facility below. To include the demolition of existing public house and surround.'

4. On the 29^th July 2009 Mrs S S Moghul with the help of her daughter issued a Claim Form seeking judicial review of the planning decision.
5. His Honour Judge Kaye QC refused permission on paper on the 25^th August and the application came before me on a renewed oral application on the 22^nd September. Mrs S S Moghul was said not to be fit enough herself to attend, but I permitted her daughter Ms R Moghul to present the oral argument in support of the application for permission. Although by the documentation she has submitted, plainly she has made a study of planning law, she is not a trained lawyer. She is intelligent enough to appreciate that, therefore, she is unable to present her arguments as succinctly and on point as would a competent lawyer. At times some of her argument was difficult to follow, but I was assisted by a letter which she submitted the following day in which she sought to summarise her essential arguments.
6. The Grounds on which the claimant relies are as follows:

i) the defendant has applied PPG6 (planning for town centres) when it should have applied PPS1 (delivering sustainable development);

ii) the design involves the destruction of a listed building;

iii) the defendant failed to follow the local development framework;

iv) the design of the development is inappropriate for the area;

v) the outline permission is against the public interest.

7. In addition, there are claims under the Human Rights Act 1998, which can be distilled into a pre-emptive claim for loss of right to light with corresponding diminution in value of the property 727 Leeds Road.
8. Procedurally, the claim is out of time, that is, it has not been issued promptly and in any event within 3 months of the decision (Civil Procedure Rules Part 54.5). It follows that the claimant must overcome that hurdle, by seeking the discretion of the Court to extend the time limit (Civil Procedure Rules Part 3.1(2)(a)).
9. In this regard, Ms R Moghul tells me that her mother has at all relevant times not been well and has had difficulties with her eyesight; that she did not receive a Neighbour Notification Letter in respect of application 08/04399/OUT; that the only Neighbour Notification Letter they did receive was dated 15^th June 2009 requiring representations by the 6^th July. This was in fact in respect of a 3^rd planning application for 1222 Leeds Road (09/02646/FUL) with which the current application for judicial review is not concerned. Ms R Moghul entered this reference on the defendant's website to discover the application 08/04399/OUT had been granted on the 8^th April 2009. It is, however, accepted by Ms R Moghul that, when she learnt that there was an appeal against the defendant's refusal of the first planning application, she had telephoned the planning office on the 9^th July 2008 and had been told that a subsequent planning application had been lodged. Ms R Moghul wrote to the defendant the same day, making several complaints in relation to the way in which the first application had been handled, but crucially ending in her last paragraph "I would appreciate it if you could provide me with any further guidance with regard to the second planning application lodged by the appellant for change of use of premises to a piecemeal development which I understand is to consist of a number of independent units."
10. On behalf of the Defendant it is submitted in its Summary Grounds that the claimant must be taken to have been fully aware since the 9^th July 2008 that there was in existence a second planning application for at the very least a piecemeal development to consist of a number of independent units; that Ms R Moghul, who was plainly assisting her mother, should have made enquiries as to the application's progress; that, had she done so, she would have realised that in due course there would be a decision. The defendant maintains that it sent out in the post on the 13^th August 2008 a Neighbour Notification Letter; that, because the letter was not returned, it must be assumed that it was received by the claimant.
11. On behalf of the claimant it is submitted that, because nothing further was heard, the claimant and her daughter assumed that nothing was happening. Ms R Moghul says that, so far as she is aware, her mother never received that Neighbour Notification Letter. In that regard, she submits, the Defendant failed to follow its own protocol.
12. Claims for judicial review are not suited to resolving issues of primary fact, such as, for example, whether or not a letter has or has not been received. That is because the essential objective is to examine the decision making process. For these purposes, where public law is concerned, certain assumptions have to be made. Based on the record of posting and in the absence of any positive evidence to the contrary, the assumption must be, in my view, that the letter did arrive at 727 Leeds Road, but may well have gone missing there for one reason or another. I am prepared to accept that Ms R Moghul herself never saw it.
13. However, I have to remind myself that this is Mrs S S Moghul's application and I have no evidence from her at all. Ms R Moghul has plainly taken it on herself to look after her mother's interests as much as possible. Commendable though that it, I am afraid that in taking on that responsibility, and knowing what she learnt on the 9^th July 2008, it is not sufficient to say that she could sit back and assume that, if she heard nothing herself, no decision had been made on application 08/04399/OUT. Because she was aware of her mother's difficulties, it made it all the more important for her to check on the progress of the application. Ms R Moghul had already demonstrated that she was familiar with the Defendant's planning department's website which would have told her at a glance of the progress of the application. In my view, she did not need the application number to do that. Moreover, I am satisfied that a site notice was published on the 15^th August and the application was advertised in the Bradford Telegraph and Argus on the 22^nd August 2008.
14. For all these reasons, I do not think it right to exercise my discretion to extend the 3 month time limit. Therefore, permission has to be refused.
15. However, out of courtesy to Ms R Moghul's approach to the Court and for her reassurance I propose to turn to my view on the prospects of the application for judicial review succeeding, had permission been granted.
16. Ground 1
17. Whilst PPG6 had no application, it is clear that the Planning Officer's Report took into account appropriately the retail policies of the Bradford Unitary Development Plan (UDP); the impact of the development on the character of the area; the design issues.
18. I agree with the Defendant's summary grounds, that Ground 1 is not arguable.
19. Ground 2
20. This is the real nub of the claim. For all the reliance on the Human Rights Act points, the essential concern of the claimant and her daughter is that a 3 storey building is planned to be built on the other side of Leeds Road to their house; that it might affect their light; that they would have wished to make representations to that effect against the grant of the planning permission. There is apparently no question of the White Bear public house being a listed building, but that apart the claimant needs to be able to argue that the Planning Officer's Report did not deal with the potential impact on neighbouring properties sufficiently. The Report plainly did deal with the potential impact on houses in Mortimer Row, although it did not deal specifically with the properties on the other side of Leeds Road which included the claimant's house. Albeit that her house is the only residential property on that side, it is clear that the Planning Officer did consider the impact on the houses in Mortimer Row in terms of their being overlooked by the development. In my view, it would be virtually impossible to challenge the Report and, therefore, the decision based on it on the relatively narrow ground that the Planning Officer had failed to consider the impact on a house which was further away and, it seems, higher in elevation.
21. I have considerable sympathy for the claimant and her daughter who feel that their light might be affected by a 3 storey development in place of an existing 2 storey building. However, it seems to me that even if they had made representations, it is unlikely that they would have made any difference to the outcome.
22. It is for these reasons that with some regret I have to say that the arguments in support of Ground 2 would have had no sufficient prospect of success to justify permission to bring this claim for judicial review.
23. The remaining grounds and matters raised by Ms R Moghul, in my view, would not have made any difference to the prospect of success.
24. In the application for a renewed oral hearing, Ms R Moghul asked the question as to what alternative remedies might be open to her mother. I am afraid that the Court cannot advise on what specific private law remedies might be considered. The claimant would be well advised to seek professional advice in that regard, before the development commences. Currently, no more than a concern has been expressed as to whether or not the claimant's right to light could be infringed. It must be a matter for the claimant and her daughter whether to pursue such an avenue of enquiry.
25. Finally, I should like to pay tribute to the way in which Ms R Moghul has sought to construct an argument in support of her mother's concerns about the development. She should not reproach herself. I cannot see that a trained lawyer would have been able to satisfy an Administrative Court that there was any prospect of judicial review succeeding in this instance.
26. Costs of the acknowledgement of service are claimed In principle the defendant would be entitled to its costs. This was a relatively straightforward application to defend. However, I am prepared to hear Ms R Moghul in behalf of her mother on the issue of costs. Alternative, I should be content to decide costs on her written representations, if she were to find that easier. For the sake of completeness and in answer to the point she raised in writing. This cannot has no power to grant permission to appeal.