England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
AT CARDIFF

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/06/2010

Mr Justice Wyn Williams:

Introduction

1. The Defendant is the owner of an area of land known as Plot 4B Esperanto Way in the city of Newport (hereinafter referred to where appropriate as "the site"). On 5 November 2009 the Estates Department of the Defendant applied to the Defendant as local planning authority for planning permission to change the use of the site. The change sought was to use the site for a temporary period of 2 years as a gypsy traveller site for one family. Additionally the Estates Department sought permission to erect steel gates at the perimeter of the site and a bin store within it.
2. The application was considered at an extra meeting of the Defendant's Planning Committee on 16 December 2009. At the conclusion of the meeting the members present, 8 in total, were split 4/4 as to whether planning permission should be granted. The deadlock was broken by the Chair of the Committee who voted in favour of granting permission. On the same day the Defendant granted planning permission for the change of use sought and the erection of the gates and the bin store. The permission was granted subject to eight conditions.
3. The Claimant owns and occupies land adjoining the site. On 19 February 2010 it issued these proceedings in which it seeks an order quashing the planning permission granted by the Defendant. It relies on no less than 11 grounds of challenge.
4. Following the grant of planning permission the site was occupied by an extended family (the Hendry family) which it is accepted is properly described as a gypsy family. The probability is that the family began its occupation of the site on or about 23 December 2009.
5. The Claimant's application for permission to apply for judicial review was considered by HHJ Vosper QC sitting as a Judge of the High Court on 25 March 2010. The judge directed that the application for permission should be listed in court to be followed, immediately, by the substantive hearing should permission be granted. The judge observed:-

"The decision of the Defendant to grant itself planning permission for use of this site as temporary accommodation by the Hendry family while at the same time recognising that it may have to serve notices on the Claimant and other neighbouring industrial occupiers in respect of use of their land which conflicts with a family's residential use, may be amenable to J R.

However, the family has taken up occupation and it may be that this application is now too late. There is at present insufficient information to refuse permission for this reason alone."

6. I have reached the clear conclusion that permission should be granted in this case. What follows, therefore, is my judgment on the substantive claim. I should say now, however, that I will also explain later in this judgment why I have decided to grant permission in the face of the Defendant's complaint that the proceedings were not instituted "promptly".

The Facts

7. Until the events which I shall describe in the paragraphs which follow, the site was an area of open land adjacent to the tidal river Usk. It had been fenced off by the Defendant and was proposed as a site for industrial development. As of the autumn of 2009 the site was empty.
8. The Claimant owns and operates factory premises at land known as the Orb Works which is in Stephenson Street Newport; as I have said the Claimant's land adjoins the site. There are other sites in Esperanto Way which are occupied; in particular, there are premises which are used as a bakery, a waste recycling operation, for the manufacture of windows and for printing.
9. The site is reasonably close to the Newport Transporter Bridge which carries vehicles and pedestrians on a gondola suspended by cables from a high level gantry which spans the river Usk. By the latter part of 2009, at the latest, the Defendant had decided to carry out works to the bridge and intended to commence those works in January 2010.
10. There was an impediment to the Defendant's plan; the Hendry family had set up camp in close proximity to the bridge. Their presence near the bridge prevented the carrying out of the works. It became an urgent necessity for the Defendant to persuade the Hendry family to move so that the works to the bridge could commence on time. With that in mind the Defendant served a notice upon the Hendry family requiring that they leave the area upon which they were camped by 1 November 2009.
11. As will become apparent, the Claimant attaches considerable importance to some of the events which occurred prior to the making of the planning application and, further some of the events which occurred between the making of the application and the grant of planning permission. It is to this aspect of the relevant history to which I next turn.
12. Following the service of the notice to vacate upon the Hendry family it was immediately recognised by the Defendant that it would be difficult to enforce the notice without there being alternative arrangements suggested to the family. The Hendry family had longstanding links with Newport and a number of the children attended local schools. To repeat, therefore, the Defendant's officers were conscious that it was necessary to attempt to find a suitable alternative site for the Hendry family to occupy.
13. By the beginning of October 2009 the search for such a site was intensifying. On 6 October 2009 Ms Sally Davies, an employee within the Housing Department of the Defendant, sent an email to a number of colleagues in different departments suggesting that the Hendry family might be relocated at a site at Hartridge Farm Road, Newport. That site was quickly discounted as a possible site for the relocation; however, by the afternoon of 7 October 2009 the site at Esperanto Way had been identified as a real possibility. On that afternoon Michelle Lewis, the Defendant's Housing Strategy Officer, emailed three colleagues to say:-

"Sally and I visited this site today and confirm it does comply with WAG Guidance on the provision of temporary sites. We also spoke with Mrs Hendry who stated that the family would be happy to move on to the site should it be made available. I have attached the site assessment pro forma."

It is worth noting that even by this date it was recognised by the Defendant's officers that what were described as minor works would be necessary on the site. Indeed, the "pro forma" mentioned in the email suggested in terms that "work would need to be undertaken to clear the site."

14. By 12 October 2009 representatives of the Defendant's Planning Department were involved in discussions and email correspondence about the relocation of the Hendry family to the site. So much is clear from an email from Mr Neil Gunter (an employee of the Planning Department) and the handwritten notes made thereupon. At some stage on 12 October 2009 or shortly thereafter advice was received from Brian Kemp, an employee of the Highways & Engineering Department of the Defendant, that the site should be cleared if it was to be occupied by the Hendry family.
15. On 15 October 2009 an inter-departmental meeting took place at which the provision of both temporary and permanent sites for travellers was discussed. Further the persons present discussed the relocation of the Hendry family to the site. On that day Ms Lucie Taylor, the Planning Policy Liaison Officer of the Defendant, wrote in an email that the discussions at the meeting should be confidential "with the one aim of finding temporary sites for longstanding members of the Newport community".
16. On 21 October 2009 Ms Michelle Lewis sent an email to a number of employees of the Defendant in different departments. The relevant parts of the email read:-

"I have visited the site and conducted welfare checks. There are no immediate issues that would prevent the Hendry family moving by 1^st November, when the notice expires.

Highways are on site and have begun works to clear it. Before the Hendry family can move onto the site there are a number of issues that need to be addressed:

The provision of water to the site;

The provision of electricity to the site;

An acceptable behaviour contract, or similar document, to cover their time on the site;

The provision of refuse disposal facilities."

The email is significant since it records that work had begun on site and that active consideration was being given to the provision of services necessary for the use of the site for residential occupation by the Hendry family.

17. On 26 October 2009 Ms Sheila Davies circulated an email which is worth quoting in full. It reads:-

"I have Seve Davison with me at the moment, who has pointed out some procedural issues which could put the authority before the Ombudsman, in relation to our proposal to move the Hendrys.

a) We must proceed asap with a planning application for temporary use. Don please action.

b) We cannot move the family until we get consent.

c) We cannot run the risk of having Enforcement Notices served on "ourselves" if they move there beforehand.

d) We could consider the "pound" for the Transporter Bridge materials being temp located on Esperanto Way (which would explain the clearing work Highways are doing at the moment).

e) We could "swap" the pound site for the Gypsy Family site once planning consent is granted.

If any of you have any concerns or comments on this latest situation, please email all as a matter of urgency."

In my judgment this email is self-explanatory. The prospect of using the site as a pound for materials for the Transporter Bridge was being raised to explain the works which had begun on the site. Subject to planning permission being obtained, however, the site was intended to be used by the Hendry family.

18. By letter dated 27 October 2009 Mr Luigi Iafrate wrote to the Chief Executive of the Defendant about the prospect of the site being used for a "traveller's caravan site". The letter records that clearance work upon the site commenced on 20 October. Mr Iafrate wrote that he had contacted Miss Sally Davies about the work and was told that the work on site related to clearing the site entrance road so as to provide a turning place for lorries using Esperanto Way. As is clear from the terms of his letter Mr Iafrate was singularly unimpressed by this explanation.
19. On or about 28 October 2009 officers of the Defendant prepared a briefing note for members of the Defendant who were elected to the Lliswerry ward (the ward in which the site is located). The briefing note begins by asserting that

"Urgent repairs are required to the Newport Transporter Bridge and the Council is currently clearing a vacant site at Esperanto Way to store materials for these works."

The note then proceeds to describe how the site is being evaluated as a possible temporary site for the Hendry family.

20. On 3 November 2009 a letter was prepared by Miss Lucie Taylor with a view to it being sent to persons occupying premises in the vicinity of the site. The letter asserted, in terms, that the work on site was being undertaken so as to enable materials to be stored for the work required to the Newport Transporter Bridge. It also alerted the reader to the possibility that the Hendry family would be permitted to occupy the site for a temporary period until a permanent site could be found for them. I understand that the letter was sent to the neighbouring occupiers shortly after it had been prepared.
21. As I have said the Estates Department of the Defendant submitted a planning application on 5 November 2009. Mr Harwood, on behalf of the Claimant, draws attention to the following features of the application as submitted. First, in section 10 of the application under the heading "Materials" the suggestion is made that tarmac hard standing exists on the site "for highway compound". Second, the existing use of the site is described as a highways compound and the assertion is made that the site is not currently vacant – see Section 15. Third, the application specifies that the proposal does not involve land which is known to be contaminated or land where contamination is suspected for all or part of the site. Fourth, in Section 19, the application specifies that the proposal does not involve the loss, gain or change of use of non-residential floor space. Mr Harwood also draws attention to the fact that the application envisages the provision of two chemical toilets on site which would require emptying on a weekly basis.
22. By letter dated 19 November 2009 the Claimant registered its objection to the grant of planning permission. Thereafter, a number of other persons occupying premises in the vicinity of the site joined in objecting to the grant of planning permission sought by the Defendant. On 8 December 2009 Messrs Turley Associates sent to the Defendant a detailed letter of objection to the planning application on behalf of the Claimant
23. In the period between the making of the application and 16 December 2009 the Defendant consulted a number of persons and organisations about the application which it had made. The significance of some of those consultations will become apparent in this judgment.
24. In the weeks prior to 16 December the Claimant arranged for photographs to be taken of the work which was being undertaken upon the site. Those photographs demonstrate that work was in progress on the site throughout November and December and was not completed by the date that planning permission was granted. It seems clear, for example, that tarmac was still being laid after the grant of planning permission. The photographs also demonstrate that the nature of the work undertaken was drainage works, the laying of kerbs and the applying of tarmac to a significant area of the site.
25. In advance of the meeting of the Planning Committee on 16 December 2009, Mr Andy Evans, the Defendant's Head of Planning, Regeneration and Strategic Housing compiled a report upon the planning application. It recommended that planning permission should be granted subject to conditions. It is a long and detailed report in a form which was entirely conventional. However Mr Harwood makes a number of criticisms of the report. In summary, he submits that the report was misleading and/or erroneous in important respects; so much so that the decision to grant planning permission should be quashed since, submits Mr Harwood, the report was, inevitably, an important consideration which lead to the grant of planning permission. When discussing the grounds of challenge, later in this judgment, it will be necessary for me to refer to particular parts of the report in detail.
26. At the Planning Committee a solicitor representing at least some, if not all, of the objectors (including the Claimant) was permitted to address the committee. The administrator of the Planning Committee took notes of the representations made by the solicitor and, indeed, of what was said, in summary, by members during the course of discussion.

The Law relevant to this challenge

27. Section 70(2) of the Town & Country Planning Act 1990 provides that when dealing with an application for planning permission a local planning authority shall have regard to "material considerations". It is common ground that a failure by a local planning authority to have regard to material considerations may lead to the quashing of a planning permission. In the next section of this judgment I will consider, in detail, whether or not the Defendant failed to have regard to material considerations when reaching its conclusion that planning permission should be granted.
28. Mr Harwood suggests that one of the reasons why the Defendant failed to take into account certain material considerations was because those considerations were dealt with inaccurately or erroneously in the report which was prepared by Mr Evans for the assistance of the Planning Committee. What is the correct approach for me to adopt in considering Mr Evans' report?
29. This issue has been before the Court of Appeal on at least two occasions. In Oxton Farms, Samuel Smith Old Brewery (Tadcaster) v Selby District Council & Another (CA) 18 April 1997, BAILII: [1997] EWCA Civ 4004, the principal issue for consideration was whether the local planning authority had failed to properly apply and/or understand the planning policies relevant to the planning application which was for the erection of a number of dwelling houses on an area of land in Tadcaster. Central to the case for the Claimant was the assertion that the planning report presented to the Planning Committee was erroneous or inaccurate in the way that it presented the policy issues to the committee. During the course of giving the principal judgment of the court Pill LJ made the following general observations about planning reports:-

"Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, [a reference to section 70 of the Town & Country Planning Act 1990] must be considered.

It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant Council meeting and that members themselves can be expected to acquire a working knowledge of the statutory test."

Judge LJ, as he then was, agreed, noting:-

"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 textural analysis appropriate to the construction of a statute or the directions provided by a judge when summing up a case 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."

30. In R(Lowther) v Durham Newport Council [2001] EWCA Civ 781 Pill LJ had this to say about the second paragraph of the extract from the judgment of Judge LJ in the Oxton Farm case set out above:-

"That approach is appropriate where a party seeking to quash the permission is alleging, and only alleging, that the committee were misled. It is not, nor in my view was it intended to be, a comprehensive statement of the duty of a planning officer in reporting to a committee. That duty is broader than a duty not actively to mislead. It includes a positive duty to provide sufficient information and guidance to enable the members to reach a decision applying the relevant statutory criteria. In the end, it is a matter of fact and degree for the members."

31. In making my judgment about the submissions made by Mr Harwood about the deficiencies alleged in Mr Evans' report I propose to apply the principles laid down by Pill and Judge LJJ in Oxton Farms as elucidated by Pill LJ in Lowther.
32. In at least two of the grounds advanced by Mr Harwood he asserts that the Defendant proceeded upon a material error of fact. In response, Mr Albutt was disposed to say that no factual error had taken place. He did not submit to me that an error of fact could not vitiate the grant of planning permission if the error identified was sufficiently important to the decision.
33. Grounds (iii), (x) and (xi) raise legal issues which are specific to those grounds. They are more conveniently dealt with, discretely, in the next section of my judgment.

Grounds of challenge and Discussion

Ground 1

34. This is an allegation that the Defendant failed to have regard to the representations which had been made by Turley Associates in the letter dated 8 December 2009.
35. The letter makes a number of detailed points. In summary, however, they are as follows. First, the proposed use of the site would be in conflict with national and local policy. Second, the proposal would result in the loss of good quality employment land. Third, there would be conflict between the industrial uses surrounding the site and the residential use of the site. Fourth, the case put forward in support in of the application relied upon factors which were not relevant e.g. the need to facilitate the carrying out of the works to the Transporter Bridge.
36. In my judgment the Claimant has failed to establish that the Defendant failed to have regard to the substance of the points made in the letter from Turley Associates. It is most unlikely that the members of the Planning Committee were not familiar with the relevant national and local policies. Each of the members of the Planning Committee received the report prepared by Mr Evans which refers in terms to a host of relevant policy documents. Further, Mr Evans' report contains a summary of the objections received. Under the heading "Representations" Mr Evans sets out in bullet point form a summary of many of the points made in the letter from Turley Associates as well as points made in other representations. In his skeleton argument between paragraphs 21 and 25 Mr Albutt demonstrates how this is so in a detailed analysis. It is unnecessary for me to repeat that analysis in this judgment.
37. The letter from Turley Associates points out, specifically, that the uses of the premises which are near to and/or adjoin the site fall into a range of B2 and B8 uses under the Town and Country Planning (Use Classes) Order 1987. Mr. Harwood points to the fact that Mr Evans' report to Planning Committee describes these uses as "light industrial" businesses; that submits Mr. Harwood is simply wrong and is very likely to lead a reader of the report to think that the uses undertaken in the neighbouring premises fell within Class B1 of the 1987 Order.
38. I am prepared to accept that members of the Planning Committee might well think that the phrase "light industrial" was intending to convey that the uses in question fell within Class B1 of the 1987 Order. The phrase is often used to convey uses falling within Class BI. However I do not accept that the members would have believed, as a matter of fact, that the uses carried on in the premises near the site fell into the category of class B1. I say that for these reasons. First, Mr Evans' report contained a specific section dealing with surrounding uses. It reads as follows:-

"Esperanto Way is occupied by a number of light industrial premises, the closest of which is the Orb Works to the south east of the site. The estate is also occupied by a printing company, a window manufacturer, a bakery and waste recycling business….."

As is obvious, Mr Evans has identified the actual uses of the land or premises near the site. Second, the members of the Planning Committee undertook a site visit and visit to the surrounding area. They would have seen for themselves what use was being made of the neighbouring premises and areas of land. In consequence, in my judgment, they would have had no doubt about the nature and extent of the operation being undertaken on the land near the premises and would not have been misled by the phrase "light industrial" contained within the report of Mr Evans or failed to understand the point being made in the letter from Turley Associates that the use of the neighbouring premises was potentially incompatible with the proposed use of the site.

Grounds 2, 4 and 5

39. The main thrust of these grounds is that the Defendant failed to have regard to important advice from its consultees. Ground 2 alleges that the Defendant failed to have regard to the objections raised by its Economic Development Manager; Ground 4 alleges a failure to have regard to the consultation response from the Public Protection and Environmental Services Department of the Defendant and Ground 5 asserts that the Defendant failed to have regard to the advice provided by its own Environmental Health Officer.
40. The Defendant's Economic Development Manager provided a consultation response by email dated 7 December 2009. He begins his response with this sentence:-

"From an economic development point of view I am opposed to this proposal in principle."

He then sets out the reasons why he has reached that conclusion. He acknowledges the difficulties of providing a site for the Hendry family but then concludes:-

"Although I am sympathetic to the need to find a solution to this problem, I do not accept that Esperanto Way is the right site, even on a temporary basis and I am further concerned about the longer term situation, as I cannot envisage a permanent solution for this being found within the 2 year time frame."

41. In his report, Mr Evans identifies the responses of many consultees under the heading "Consultations." However, there is no reference to the views of the Economic Development Manager under this heading. There is a reference to his views, however, in a separate section of the report under the heading "Surrounding Uses". In the second paragraph of that section the following sentence appears.

"The Economic Development Manager has expressed concern regarding the long term residential use of this land due to the loss of future employment land and the impact on neighbouring businesses."

42. Despite Mr Albutt's attempts to persuade me to a contrary conclusion, I cannot accept that this one sentence is a fair or accurate summary of the view expressed by the Economic Development Manager. I do not see how his trenchant opposition in principle to the proposal can become an expression of concern regarding the long term residential use of the land.
43. There is no evidence put before me to suggest that the true view of the Economic Development Manager was communicated to the Planning Committee or that any member of the committee sought to elucidate his view. It follows, in my judgment, that the Defendant took the decision to grant planning permission without having regard to the true view of the Economic Development Manager. To repeat, Mr Evans' report simply did not reflect his view accurately and there is no basis upon which I could conclude that the members had become aware of his true view before they took their decision.
44. Even before the Estates Department made the application for planning permission a member of the Defendant's planning department, Lucie Taylor, asked for an investigation of ponding which had developed on the site after clearance work had been undertaking. On 28 October 2009 Mr Andy Williams, the Defendant's Senior Scientific Officer, replied as follows:-

"The proposed traveller's site at Esperanto Way is located on a potentially contaminated site, listed as the Orb Refuse Tip from 1956 onwards. It is thought to contain a mixture of commercial and industrial waste. A small amount of investigation work has previously been undertaken at part of the former tip site which did not appear to identify significant contamination when assessed against current land uses.

As the proposal involves the temporary use of the site by mobile homes, I would consider it onerous to recommend that the site investigation and risk assessment is undertaken as would be the case if the site were being redeveloped for residential properties. I understand that the site is to be hard covered, which is likely to provide a sufficient barrier to break potential contaminant pathways. In addition, the mobile nature of the homes and lack of disturbance to ground material combined with the absence of gardens and landscaped areas, provides further justification for this.

However, if the site were to be used for residential use by mobile homes without the provision of hard cover, or if gardens or landscaping is proposed then some assessment of ground conditions would be recommended."

45. Mr Harwood points out in his skeleton argument the planning application did not disclose the possibility that the land was contaminated. Be that as it may, on 2 December 2009 Mr Williams repeated the contents of his earlier email by sending it again to the Defendant's Planning Department. It was intended to be a consultation response to the planning application.
46. The summary of this response contained within Mr Evans' planning report to the Planning Committee reads as follows:-

"HEAD OF PUBLIC PROTECTION & ENVIRONMENTAL SERVICES (CONTAMINATION); the site is located on potentially contaminated land, listed as the Orb Refuse Tip from 1956 onwards. However, as the proposal involves the temporary use of the site by mobile homes, it is not necessary for the site investigation works or a risk assessment to be undertaken. The site is already hard surfaced which is likely to provide a barrier to break potential contaminant pathways."

47. The proposal for which planning permission was sought was accompanied by a plan which showed that an area of the site was to be used as a garden. That being so, submits Mr Harwood, the Planning Committee should have been told that there was a need for at least some limited site investigation since that is what Mr Andy Williams had advised.
48. If this point stood alone, I would have considerable reservation about whether it had any real significance. It does seem to me, however, that the report did not accurately summarise Mr Williams' advice in at least one respect and, of course, my task ultimately is to consider the accuracy and fairness of the report overall. In my judgment, therefore, the inaccuracy in summarising Mr Williams' advice has to be considered in the light of my conclusion, already expressed, in relation to ground 2 and other features of Mr Evans' report to which I will turn in due course.
49. Ground 5 asserts that the Defendant failed to have regard to the effect of neighbouring operations on the proposed development and the environmental constraints that might be imposed upon such operations by reason of the presence of the residential development on site. In support of that ground Mr Harwood submits that the Defendant failed to have regard to advice it received from its Environmental Health Officer.
50. That advice was given by Ms Clare Edwards, a Senior Environmental Health Officer. She responded to the planning application by confirming that there was no objection to the development from the point of view of the Environmental Health Officer given that the proposed use was temporary and that no permanent structures were to be erected on site. Additionally, however, her consultation response also contained this expression of view:-

"It must be noted however that we still have some concerns about the proposal due to the close proximity of industrial/commercial development, HGV parking and a sewage pumping station (the site is likely to be subjected to excessive noise and fumes/odours). Should we receive complaints about statutory nuisance from future occupiers of the site, we would have a statutory duty to investigate and take appropriate enforcement action against established businesses in the area."

51. That response was summarised in the report prepared by Mr Evans under the heading "Consultations". In my judgment it was summarised accurately. Although it is to be noted that the summary in that section of the report did not raise, specifically, the possibility of enforcement action against the operators of the businesses located near to the site such a possibility was raised later in the report. In my judgment nothing turns upon the omission to specifically report that Ms Edwards had raised the possibility of enforcement action.
52. Mr Harwood also seeks to support Ground 5 on the basis that the members of the Planning Committee were provided with misleading information about the neighbouring uses since those uses were described as "light industrial". I need not repeat the views expressed in paragraphs 36 and 37 above. In my judgment, there is no realistic prospect that the members of the committee were in ignorance of the true nature of the neighbouring uses and their potential for producing noise or odour nuisance.
53. Finally, in relation to Ground 5, I note that Mr Harwood's skeleton argument also asserts that the local planning authority failed to have regard to information provided by local business users that travellers previously resident in Esperanto Way had complained about noise and odour. Although that assertion appears in the skeleton argument there is no further information set out to support the contention. In his oral submissions Mr. Harwood did not elaborate. In my judgment there is no basis established for this complaint. However, as Mr. Albutt points out, the notes of the discussion which took place at the Planning Committee appear to record that Mr. Richards the solicitor who spoke on behalf of objectors raised previous complaints about noise and there is no reason to suppose that the members did not have regard to what was said at the meeting.

Ground 6

54. The Claimant suggests that the Defendant failed to have regard to Planning Policy Wales which provides that noise-sensitive development, such as caravans, should not be sited near noise-generating industry.
55. I have dealt with this point, to some extent, in my discussion of ground 1. To repeat I find it very unlikely that experienced members of a planning committee were not familiar with such basic policy guidance. However, it is clear, beyond any doubt, that the issue of siting of noise-sensitive development near noise-generating industry was an issue which was squarely before the committee. It was raised, in terms, by Mr Richards on behalf of the objectors when he addressed the committee; it was raised as a specific point by Mr Evans in his report to committee when dealing with representations from objectors and the issue is dealt with, squarely, in the section of Mr Evans' report under the heading "Surrounding Uses".
56. I accept Mr Albutt's submission that the balanced approach advocated by Planning Policy Wales was followed in this case. The fact that such an approach is not specifically articulated in the context of Planning Policy Wales within Mr Evans' report does not, in my judgment, deflect me from that conclusion.

Grounds 7 and 8

57. Ground 7 is an assertion that the Defendant failed to have regard to advice contained in Technical Advice Note 15: Development and Flood Risk. In summary, Mr Harwood suggests that the advice contained within TAN 15 militated against the grant of planning permission because there was a clear risk that flooding would occur on the site. Mr Harwood provides a detailed appraisal of why that is so in his skeleton argument.
58. It is also to be noted, in relation to this ground of challenge, that the Environment Agency provided a detailed consultation response which dealt with the flood risk to the site. The Environment Agency concluded that planning permission should not be granted and provided detailed reasons for its conclusion. The consultation response summarised the position of the Environment Agency in the following way:-

"We recognise the need to locate a gypsy/traveller family in the local area, however given the risk and consequences of flooding to the proposed site, and manageability has not been demonstrated, we strongly recommend that a more suitable site is sought.

We would recommend refusal of the planning application taking into account that this is a new full planning application for a temporary period; persons are being brought into an area at risk of flooding; and the assessment does not demonstrate that the risks and consequences of flooding can be managed down to an acceptable level then. In coming to a decision the LPA must consider such risks and consequences of flooding (A3.6 of TAN 15). We understand, however, that there may be other overriding considerations that may lead the LPA to permit development. Should the LPA be minded to approve the planning application then we suggest that you could ensure that a robust emergency evacuation plan is in place."

59. Mr Evans dealt with the risk of flooding in a discrete section of his report to committee. It is necessary to quote the entirety of what he had to say:-

"Flood Risk

In respect of flood risk, TAN 15 points out the dangers to life, the disruption and trauma to people's lives and the damage to property which can result from flooding. It also identifies the difficulties of predicting such an event will occur. A precautionary framework has been set up for development control purposes with the intention that new development is to be directed away from those areas of high risk. Residential development, such as this, is classified as highly vulnerable development. The site is relatively close to the sea defences and within flood zone C1, which is floodplain benefiting from some level of protection by defences. As such, highly vulnerable development is only permitted where it can be justified on the basis of the tests set out in TAN 15. Residential caravan sites are deemed to be highly vulnerable development and, because of the inherent instability of caravans, their occupants are considered to be at special risk. In addition, policy SP 24 of the Newport UDP states that development will not be allowed where there would be an unacceptable risk of flooding.

In accordance with section 6 of TAN 15 and UDP Policy SP 27 the applicant has submitted a Flood Consequences Assessment (FCA) which has been considered by the Environment Agency, together with all of the additional supporting documentation. Considering the low lying level of the land and that the site is nearby a low section of the sea defences, it is considered the site is liable to flood to a depth between the order of 1.56 and 2.56m during a 1 in 200 year tidal flood event. Consequently the site is at a much greater risk of flooding than is acceptable in accordance with the requirements of TAN 15.

As aforementioned, the Hendry family currently reside on an unauthorised site adjacent to the Transporter Bridge. This site is not only closer to the River Usk but also next to the gap in the sea defences (this being the entrance to the Transporter Bridge). Section 6 of the TAN outlines exceptional circumstances where vulnerable development may be permitted. In particular, point (i) of paragraph 6.2 states that development would be justified if its location within zone C is necessary to assist, or be part of, a local authority regeneration initiative. As stated in the Welsh Assembly Government Biannual Caravan Count, this unauthorised site is currently being tolerated by the Authority, however, the site is now required because of the necessary repair work being undertaken to the Grade I Listed Transporter Bridge, which are due to commence in January 2010. It should be noted that the works cannot be undertaken with a family in situ. The site is also considered to meet the definition of previously developed land outlined in figure 2.1 of Planning Policy Wales, and therefore accords with point (iii) of paragraph 6.2.

"In addition, the family are fully aware of the risks from flooding and have assured the Authority that they have sufficient vehicles and eligible drivers in order to vacate the site within 20 minutes in the event of a flood. In order to provide a level of certainty that this would be the case, it would be necessary to impose a condition on any permission to ensure all vans would be parked with their tow bars facing outwards to facilitate speedy evacuation of the site. Moreover, the Environment Agency has confirmed that a flood warning service is available for the tidal Usk. As such, prior notice of up to 7 hours can be given to occupants at risk in the case of a tidal flood. This is because tidal flood events are inherently predictable based on weather conditions, tidal cycles and high tide times. The applicant has confirmed that the occupants of the site would be provided with a flood evacuation strategy detailing what to do in an emergency. This would show the flood evacuation route and give details of what to do in case of such a situation. This can be controlled by way of suitable conditions.

Ordinarily residential development in this location would not be permitted. However, given that the proposal is for a temporary period, would facilitate a local regeneration initiative, and would provide the family with (arguably) a more suitable site, a further distance from the river with improved facilities and a flood evacuation procedure, it is considered that this proposal would represent a betterment to that of their current situation in terms of managing the risks and dangers associated with flooding.

It should be noted that this justification can only be made for the specific factors surrounding this temporary application. It is highly unlikely that exceptional circumstances would exist for another development or other occupiers for this site, and this site is certainly not suitable for permanent occupation."

60. In the section of his report under the heading consultations Mr Evans summarised the response from the Environment Agency. In my judgment he stops well short of communicating the true view of the Agency. While he reports that the Agency recommended that a more suitable site should be sought he does nothing to convey the unequivocal view of the Agency that planning permission should be refused.
61. Mr Harwood first submits that the report of Mr Evans did not make it clear, in terms, that the proposal could not comply with the advice in TAN 15. That may be true in the strict sense identified by Mr Harwood in paragraph 112 of his skeleton argument.
62. In judging Mr Harwood's complaint, however, it is necessary to bear very much in mind the principles set out earlier in this judgment from Oxton Farms and Lowther cases. The obligation upon the planning officer who compiles a report is to provide sufficient information and guidance to enable the members to reach a decision applying the relevant statutory criteria. It was obviously necessary for the members to have regard to the risk of flooding at the site as a matter of fact and the planning policies as they related to that risk. However, as the Environment Agency itself acknowledged, the risk of flooding and the policy consideration associated therewith did not necessarily mean that planning permission should be refused.
63. In this context I am satisfied that Mr Evans provided sufficient material to the members to permit them to make an informed decision as to the weight to be attached to the risk of flooding at this site. The long extract from his report set out in paragraph 59 above essentially speaks for itself. In summary, however, Mr Evans makes it clear, in my judgment, that the risk of flooding was such that planning permission for residential development would normally be refused. He invites the committee to consider, however, whether the exceptional circumstances which he considers exist in this case might lead to a different conclusion.
64. However, while I am not persuaded that Mr. Evans report was inaccurate or misleading as it related to the risk of flooding it was inaccurate and misleading in the way that it conveyed the views of the Environment Agency. I simply cannot understand why Mr. Evans did not report in unequivocal terms that the Agency recommended that planning permission should be refused.
65. During the course of oral submissions I expressed a concern about one specific point which arose as a consequence of the response from the Environment Agency. The Environment Agency made the suggestion that in the event that planning permission was granted the Defendant should ensure that "a robust emergency evacuation plan" was in place. In his skeleton argument Mr Harwood submitted, in effect, that no such robust plan was in place since it was contemplated that evacuation would take place over land controlled by the Claimant and the Claimant was not disposed to consent to the use of its land for such a purpose.
66. As it turns out Mr Harwood's submission was erroneous. During the course of his oral submissions Mr Albutt produced before me an evacuation plan which clearly demonstrated that use of the Claimant's land for evacuation was not contemplated.
67. It is to be observed that the planning permission had been granted subject to a condition that prior to the first beneficial use of the site details of an emergency plan showing how the consequences of a flood event would be managed would be submitted to and approved in writing by the Defendant. It became clear during oral submissions that the evacuation plan produced by Mr Albutt had not been submitted to and approved by the Defendant prior to the date when the Hendry family took up occupation. Although it is unfortunate that the Defendant did not insist upon strict compliance with this condition that does not seem to me to be any reason why the planning permission should be quashed.
68. Ground 8 alleges that the Defendant failed to consider alternative sites for the proposed development; they should have done so, submits Mr Harwood, since the advice in TAN 15 militates against the grant of planning permission for the site and expressly suggests that alternative sites should be considered.
69. I accept Mr Albutt's submissions that the issue of alternative sites was properly considered by the Planning Committee prior to the grant of planning permission. Mr Evans' report contains the following paragraph:-

"The two nearest Gypsy Traveller's Sites at Shirenewton and Rover Way in Cardiff have long waiting lists. There are also no vacancies at the Torfaen facility, much further away. No provision has been identified by this Council nor is it intended to be provided by way of the current Development Plan. Whilst the Council has begun to assess possible sites within the local Development Plan (which will supersede the Unitary Development Plan) this is a lengthy process and so no site provision is considered to be imminent until the adoption of the Local Development Plan (anticipated to be in 2011). The Hendry family would in effect be made homeless if planning permission is refused."

70. I do not see how I can reject that passage as an accurate statement of the position at the material time.
71. As I read the voluminous papers before me there was one alternative site thought to be a possibility namely the site at Hartridge Farm Road. That was quickly discounted as I have recorded earlier in this judgment and it is not for me to impugn the reasons advanced as to why the site could not be used to house the Hendry family. Indeed, no suggestion is made by Mr Harwood that the rejection of this alternative was any kind of decision which could be impugned in these proceedings.
72. It is also worth mentioning that in its response to the Claimant's pre-action protocol letter the Defendant asserts that it conducted a thorough check of all land in its ownership which could have been used on a temporary basis before reaching a conclusion that the site should be made the subject of an application for planning permission. I have no reason to doubt what is asserted in that letter although I note that there is no primary evidence relied upon which proves the assertion.
73. I am not satisfied that ground 8 is made out.

Ground 9

74. In its consultation response the Environment Agency noted that the planning application envisaged chemical toilets being used as a means of disposing of foul water. The Agency advised that the site lay within a sewered area and, in those circumstances, a connection to the public main foul sewer should be investigated.
75. The Agency did not specify that the failure to carry out any such investigation would be a ground for refusing planning permission.
76. Mr Harwood correctly points out that the report prepared by Mr Evans did not refer to the Environment Agency's representations on this point nor, indeed, to appropriate planning policy (Welsh Office Circular 10/99 and Unitary Development Plan Policy U3).
77. The failure to comply with planning policy in respect of the disposal of foul water is, depending upon the relevant circumstances, capable of being a failure to have regard to a material consideration. It seems to me, however, that this case must be looked at very much in its context. It was proposed that a number of caravans be located on site for a comparatively short period of time. In those circumstances connections to the foul drainage system might well prove disproportionate in terms of cost. In any event, Mr Harwood was disposed to accept that this criticism, of itself, would be unlikely to justify the quashing of the planning permission.
78. I am very dubious about whether the Defendant failed to grapple with what was, in context, a comparatively minor issue. Even if there was a failure to grapple with the issue, however, I have no hesitation in concluding that had the Defendant considered it, it would, inevitably, have reached the same conclusion about whether planning permission should be granted whether this failure is looked at in isolation or in conjunction with other failures identified in this judgment.

The Discrete Grounds

Ground 3

79. This ground alleges that the Defendant made a material error of fact and failed to have regard to material considerations in determining the application on the erroneous basis that the proposal did not involve ground works, particularly drainage works and the laying of tarmac. It is further alleged that the Defendant approached the impact of the development, for example contamination, flooding, visual impact in ignorance of these relevant matters.
80. During the course of oral submissions I was in some doubt about whether the fact that the Defendant carried out works upon the site (and, indeed, was still carrying out works on site on 16 December 2009) was a material consideration. The Estates Department had not applied for planning permission to carry out those works and, if, in truth, the works could be undertaken without the need for the grant of planning permission it was difficult to see their relevance.
81. It soon became apparent, however, that the works were carried out without planning permission and without other lawful authority for their execution.
82. In its summary grounds the Defendant had asserted that the works on site were carried out under permitted development rights "to prepare the site for use as a highways compound in association with the Transporter Bridge works". Reliance was placed on the permitted development rights contained within Part 13, Class A of the Town and Country Planning (General Permitted Development) Order 1995.
83. Part 13 Class A permits:

"The carrying out by a highway authority

a) on land within the boundaries of a road, of any works required for the maintenance or improvement of the road, where such works involve development by virtue of section 55(2)(b) of the Act; or

b) on land outside but adjoining the boundary of an existing highway of works required for or incidental to the maintenance or improvement of the highway."

84. Mr Harwood submits that even if the works were genuinely for a highway compound they did not attract development rights because sub-paragraph (b) of Part 13 Class A applies to works on land outside but adjoining a highway which are required for or incidental to the maintenance or improvement of that highway. As a matter of fact the Transporter Bridge, even if a highway, (which is very dubious) does not adjoin the site but is some distance from it.
85. Mr Albutt did not contradict Mr Harwood's analysis. I unhesitatingly conclude that the works carried out upon the site were not authorised by Part 13 Class A of the 1995 Order.
86. Mr Albutt submits that the officers of the Defendant who first promoted the idea that the works on site could be lawfully carried out by virtue of Part 13 class A genuinely believed that this was so. I am not prepared to conclude that Mr Albutt is wrong in that submission in the absence of clear evidence which shows that to be the case. I have to say, however, that had any relevant officer taken the simple step of obtaining advice from the Defendant's legal department it would very quickly have been demonstrated that there was no right to carry out the works upon site for the purpose of creating a storage area for materials to be used in the repair of the Transporter Bridge.
87. The reality of this case is that substantial works were undertaken on the site from late October to late December 2009 for which planning permission was necessary but yet no application for permission was made. That does not reflect well upon the Defendant.
88. The report prepared by Mr Evans does not touch upon the alleged development rights. In more than one place, however, it asserts as a matter of fact that there is tarmac covering at least most of the site. That state of affairs was presented as a fait accompli to the members of the Planning Committee.
89. Ultimately, as I understood his submissions, Mr Albutt was prepared to accept that the Planning Committee was wrongly kept in ignorance of the true state of affairs as it related to the carrying out of the works and in particular as to whether or not they were lawfully authorised. He was disposed to accept that this court would be entitled to treat the withholding of this information as a reason why the planning permission should be quashed. His principal submission in relation to this ground was that the committee, inevitably, would have reached the same conclusion had they been given all relevant information relating to the carrying out of the works. I deal with this issue in the last section of my judgment.

Ground 10

90. This ground alleges that the Defendant erred in law in considering that section 63 of the Planning & Compulsory Purchase Act 2004 imposed a statutory duty to allocate sufficient gypsy sites.
91. This ground arises as a direct consequence of the report prepared by Mr Evans. Under the heading "National Policy" Mr Evans correctly identifies the appropriate guidance in national policy statements. However he includes a sentence within this section which states in terms that section 63 of the Planning & Compulsory Purchase Act 2004 requires local planning authorities to allocate sufficient gypsy sites.
92. It is common ground that section 63 does no such thing. In my judgment it is entirely misleading to suggest that it does.
93. Of course, Mr Albutt is correct when he says that national policy requires local planning authorities to allocate sufficient gypsy sites and the members would have understood that this was the case.
94. I accept this submission as far as it goes. It is obviously very likely that the members of the Planning Committee were aware that national policy statements advocated that sufficient sites should be made available for gypsy families. The members, however, were being told in terms that the Defendant was under a statutory duty to provide sufficient sites. It is most unlikely, in my judgment, that the members were aware of the true terms of section 63 of the Planning & Compulsory Purchase Act 2004 or took any steps to check for themselves what it said. I am compelled to the conclusion that this is another example where Mr Evans' report is properly to be categorised as misleading. Further I have reached the conclusion that the members probably proceeded upon a false understanding of the legal obligation imposed upon the Defendant.

Ground 11

95. The Claimant asserts that the Defendant erred in law when determining whether an appropriate assessment was required under the Conservation (Natural Habitats) Regulations 1994 as it proceeded on the materially false basis that no building works were proposed.
96. To some extent this ground overlaps with ground 3. Strictly, of course, the application for planning permission did not include building works other than the erection of gates and the construction of the store bins. Mr Harwood submits, in effect, that since application should have been made for the drainage works and the creation of the hard surface consideration should have been given as to whether the project as a whole was likely to have a significant effect on a Special Area of Conservation.
97. It is common ground that the site was close to the River Usk Special Area of Conservation and River Usk (Lower Usk) Site of Special Scientific Interest. It is also common ground that the Countryside Council for Wales responded to the planning application by offering no objection to the proposal but upon the assumption that no building works were to be undertaken on site and there was to be no discharge to the river.
98. I am prepared to assume for the purposes of this Ground that the Defendant should have been made aware, one way or the other, that the drainage works and the hard surfacing works required planning permission with the consequence that it had to consider whether those works were likely to have a significant effect on the Special Area of Conservation. I have to say, however, that there is not a shred of evidence which suggests that the carrying out of those works was likely to have such a significant effect. In this instance, of course, I have the benefit of hindsight. The works have been undertaken and there has been no effect. I cannot imagine, however, that even in advance of the carrying out of the works any other eventuality was the predictable outcome. It is bordering on the inconceivable, in my judgment, that comparatively simple works such as creating drains and laying tarmac could not be undertaken without, at the same time, giving rise to a likely adverse impact upon the Special Area of Conservation.
99. In my judgment, had the Defendant turned its mind, specifically, to whether the works were likely to have a significant effect upon the Area of Conservation it would have confidently concluded that it would not. Accordingly, this ground of challenge is not made out.

Summary of Conclusions on the Grounds of Challenge

100. I have reached the conclusion that Mr. Evans' report to the Planning Committee failed to report the consultation responses from the Economic Development Officer and the Environment Agency accurately. In my judgment the report was misleading in the way it dealt with these responses. I have also been persuaded that his report of the views expressed on behalf of the Public Protection and Environmental Services Department lacked an important point of detail. The report was wrong when it stated that the Defendant had a statutory duty to allocate sufficient sites for gypsies. Finally the report was wrong to describe the site as covered with hardstanding thereby giving the clear impression that it was an existing lawful state of affairs. While I acknowledge that Mr. Evans was entitled to a good deal of latitude in exercising his own judgment about what the report should contain once he had decided to deal with a particular point his obligation was to deal with it accurately. To repeat in a number of important respects he did not.
101. It is very likely that the members of the Planning Committee proceeded to their decision without any of the inaccuracies or errors contained within the report being corrected. Accordingly, I conclude that in a number of respects the Planning Committee failed to have regard to material considerations and in one respect took into account a consideration (the supposed statutory duty to allocate sufficient sites) which was wrong.
102. I also conclude that the Claimant has established Ground 3 of its challenge.
103. Taking all these matters together I am satisfied that grounds exist to quash the planning permission granted on 16 December 2009. That does not mean, of course, that I must make a quashing order. It is to the issue of appropriate relief to which I now turn.

Relief

104. It is well settled that the grant or refusal of the remedy sought by way of judicial review is, in the ultimate analysis, discretionary – see the speech of Lord Roskill in Inland Revenue Commissioners v National Federation of Self-Employed & Small Businesses Ltd [1982] AC 617, 656. However, the discretion must be exercised judicially and in most cases in which a decision has been found to be flawed, it would not be a proper exercise of the discretion to refuse to quash it. See R (Edwards) v Environment Agency [2008] UKHL 22 at paragraph 63 (the speech of Lord Hoffmann).
105. In cases where the court is invited to issue a quashing order in respect of a planning permission there is a settled body of authority which suggests that a quashing order may be refused where the court is satisfied that the outcome would be the same when the planning application was considered afresh. In this case Mr Albutt submits, strongly, that such is the position in this case.
106. I cannot accept Mr Albutt's submission. It seems to me to be impossible to predict what a planning committee would do when faced with the information which, as I have held, it ought to have received. Further, a not insignificant period of time has elapsed so that there may be circumstances properly to be taken into account upon a reconsideration of the planning application about which I know nothing. On any view, this planning application was contentious and likely to lead to strongly held views both for and against. It would be wrong of me to second guess the outcome of a fresh consideration should the planning permission be quashed.
107. The Edwards case also makes it clear that the court's discretion is to be exercised having regard to the nature of the flaw in the decision-making process and the grounds put forward for withholding relief in the exercise of the court's the discretion – see paragraph 63. In this case there is no single flaw in the decision-making process but, rather, a failure to take account of a number of material matters together with reliance upon erroneous matters. In my judgment that militates in favour of the grant of the quashing order which is sought.
108. The planning permission, of course, was granted to the Defendant. The Defendant would not be prejudiced if the planning permission was quashed. No one has suggested the contrary.
109. Is it permissible to take account of the position of the Hendry family? It would appear strange if that was not so. The planning permission in this case was granted, solely, for the purpose of providing a site upon which the family could house its caravans and then reside. It would be strange, indeed, if the interests of the persons who were the true beneficiaries of the planning permission were not an important matter to be taken into account when exercising a discretionary remedy. I have been shown no authority which suggests that any prejudice to the Hendry family consequent upon a quashing order should not be taken into account in deciding whether to make such an order.
110. At first blush the prejudice to the Hendry family is very significant. They moved their caravans onto the site on 23 December 2009 and they have lived at the site since that date. No evidence was adduced before me to show that the Claimant took any step to notify the Hendry family that it was proposing to challenge the planning permission. It may be reasonable to infer that the Defendant informed the Hendry family that a pre-action protocol letter had been sent on or about 21 December 2009 which raised the prospect of a challenge to the planning permission but, thereafter, approximately 2 months elapsed before the proceedings were instituted. During that period of time, no doubt, the Hendry family would have presumed, reasonably in my judgment, that as time was passing by so the prospect of a challenge to the planning permission was receding.
111. It is also the case, of course, that the Hendry family are untainted by the illegality which I have found proved.
112. I have scrutinised the evidence adduced by the Claimant with care. There is nothing within the evidence which suggests that the Claimant would suffer any kind of real prejudice if the planning permission was not quashed. I regard the suggestion that it might become the victim of enforcement action relating to noise nuisance as a remote possibility which can, for practical purposes, be discounted. The Claimant's complaints about events since the Hendry family have been on site are minor and there is no suggestion of formal complaints to the Defendant about the behaviour of the Hendry family.
113. There is one consideration, however, which is difficult to evaluate in this case. Mr Harwood, on behalf of the Claimant, accepts that there can be no question of the Hendry family being removed from the site even if the planning permission is quashed. He accepts that at least pending a reconsideration of the planning application the Hendry family should properly remain on the site. It also seems to me that the logic of Mr Harwood's position would dictate that the Hendry family should remain on site during any period that they were taking steps to challenge the refusal of planning permission, if that is what occurred.
114. I can see an argument that the prejudice to the Hendry family consequent upon a quashing order is minimised if the reality is that they will remain on site for a substantial period of time. On balance, however, I reject that view. If the planning permission is quashed the occupation of the site would be unlawful, in planning terms, and there would be an unnecessary legal lacuna.
115. That leads me to the final factor which, in my judgment, is to be taken into account in the exercise of my discretion. The planning permission subsists for two years only. In my judgment and in the particular context of this case that militates against the making of a quashing order. I do not regard is as conducive to good administration that a significant part of the 2 year period should be taken up with uncertainty over whether or not the Hendry family is lawfully entitled to be upon the site. There is a distinct danger that a quashing order would lead to further disputes yet, all the while, the Hendry family would remain on site.
116. I have reached the conclusion that in the exercise of my discretion I should refuse to quash the planning permission.
117. My provisional view is that I would grant some suitable declaratory relief if the Claimant thought it appropriate. However, it may be that a declaration is unnecessary given the terms of this judgment. I am content to leave this aspect for a short debate when the judgment is handed down.
118. As is clear I have reached my decision about whether to grant a quashing order without reference to section 31(6) of the Senior Courts Act 1981. Since this was the subject of significant argument before me, however, it is necessary to deal with the issue. However, the facts relevant to this issue are also relevant to the issue of whether it was appropriate to refuse permission on the ground of lack of promptness. Accordingly, I start by recording the facts relevant to the issue of lack of promptness/undue delay.
119. The relevant chronology is as follows. By letter dated 18 December 2009 Messrs Nutter & Richards (the firm of solicitors which had represented the objectors at the Planning Committee) wrote to the Defendant's legal department to complain about aspects of what had occurred at the Planning Committee. The letter concludes by asserting that the decision reached by the Planning Committee was "defective and unlawful". Further, the letter calls upon the Defendant to investigate the complaints made and "cease all works at the proposed site until such time as the investigations have been concluded and a meeting held with all respective parties."
120. Mr Gareth Price, the Head of Law and Standards with the Defendant replied by letter dated 23 December 2009. His letter constitutes a detailed rebuttal of Mr Richard's complaints. His letter ends by confirming that the conditional planning consent had been issued and that the necessary work would continue with a view to relocating the Hendry family as soon as possible.
121. Before Mr Price wrote his letter of 23 December 2009 the Claimant's current solicitors wrote a letter before claim to the Defendant. The letter was intended, specifically, to be a pre-action protocol letter. The letter constitutes a detailed challenge to the lawfulness of the grant of planning permission. I do not know whether it had been received by the time Mr. Price wrote his letter of 23 December; in any event no response to the pre-action protocol letter had been provided by 14 January 2010. Accordingly on that date the Claimant's solicitors sent a reminder (with a copy of the letter of 21 December 2009 attached) and sought a substantive response by no later than 4pm 18 January 2010. Mr Price provided a substantive response by letter dated 18 January 2010. On 3 February 2010 the Claimant's solicitors acknowledged receipt of Mr Price's letter of 18 January. They complained that documentation sought in the pre-action protocol letter had not been provided and they made a request for additional documents. In a letter of the same date the Claimant's solicitors sought documentation pursuant to the Freedom of Information Act 2000. A further request for information under the 2000 Act was sent to the Defendant by email on 4 February. There was a response to the email by letter dated 10 February but much of the documentation sought remained undisclosed by the date the Claimant issued these proceedings on 18 February 2010.
122. I am satisfied that the Claimant knew that the Hendry family had taken up occupation of the site as from 23 December 2009 and that they continued to occupy it thereafter.
123. Reduced to its essentials the Claimant sent a pre-action protocol letter on or about 21 December 2009. There was a detailed response by letter dated 18 January 2010 and these proceedings were commenced one month later. During the whole or virtually the whole of this period of time the Hendry family was occupying the site as their home and pursuant to the planning permission.
124. CPR 54.5 provides that a claim form must be filed promptly and in any event not later than 3 months after the grounds to make a claim for judicial review first arose. The court may extend time if there is a good reason to do so.
125. In this case it is clear that time began to run as from 16 December 2010 i.e. from the date when the planning permission was issued. Further the Claimant knew that time was running from that date. It served its pre-action protocol letter very promptly. Thereafter, the steps it took may have been with the aim of facilitating its claim (the requests for information both as a matter of pre-action disclosure and under the 2000 Act) but at all times it was open to the Claimant to commence proceedings before that information was supplied (as it eventually did). I am not persuaded that the Claimant acted promptly in bringing these proceedings although I acknowledge, of course, that the proceedings were brought within 3 months of the date of the planning permission.
126. That said, I am satisfied that it is appropriate to permit the proceedings to proceed. There are two principal reasons. First, as I have found the Claimant has proper grounds for a successful challenge. The merits of the claim are obviously an influential factor. Second, the Defendant, itself, was guilty of delay. In my judgment no good reason has been advanced why the response to the pre-action protocol letter was so long delayed.
127. I turn to section 31(6) of the Senior Courts Act 1981. It is in the following terms:-

"(6) Where the High Court considers that there has been undue delay in making an application for judicial review, the Court may refuse to grant – a) leave for making the application, or b) any relief sought on the application if it considers the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

I have found that the Claimant did not commence these proceedings promptly. In the context of this case, at least, a lack of promptness is properly to be equated to undue delay notwithstanding that proceedings were commenced within 3 months. The issue of undue delay has to be considered objectively by the court and on the basis of the chronology set out above I am satisfied that undue delay has been established.

128. As I have found the undue delay does not constitute a reason why I should refuse permission to apply for judicial review. Is it a reason why I should refuse relief?
129. The Hendry family would be substantially prejudiced if a quashing order was made. My reasons for this conclusion are stated above. I have also found that a quashing order would lead to a state of affairs which could be regarded as detrimental to good administration. It seems to me, therefore, that there are proper grounds for withholding relief in reliance upon section 31(6) of the 1981 Act. In making that judgment I am also satisfied that the delay which I regard as "undue delay" played a part in causing prejudice to the Hendry family. It may very well be, as I have said, that the Hendry family knew of the possibility of a challenge to the planning permission almost as soon as it was made. However, with every day that passed they would reasonably think that the prospect of a challenge was diminishing. The fact that about 2 months went by before these proceedings were commenced would have induced in the minds of the adults of the family at least a hope and probably a belief that no challenge would be made. That hope was then dashed. In my judgment that state of affairs is properly to be regarded as prejudicial.
130. In the exercise of my discretion, therefore, I refuse to grant a quashing order in this case. I make it clear that I reached that conclusion both in reliance upon section 31(6) of the Senior Courts Act 1981 and independently of it. To repeat I am prepared to consider granting some kind of declaratory relief but I will deal with that issue upon the handing down of this judgment.