England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		17/12/2010

HH Judge Anthony Thornton QC:

Introduction

1. The claimant, Mr Young, lives on Headington Hill, Oxford and he seeks an order quashing the grant of full planning permission by the first defendant, Oxford City Council ("OCC"), to the second defendant, Oxford Brookes University ("Brookes") dated 18 June 2010 on Brookes' adjacent Headington Campus. The grounds relied on are that OCC failed to take any, or any sufficient, account of relevant Local Plan policies relating to retail development and noise control in considering and deciding the application for planning permission and applied the wrong test in relation to its consideration of the retail impact of the proposed development. Mr Young also contends that the section 106 undertaking is of no effect as a means of enforcing the relevant conditions imposed by the planning permission which OCC contends provide an adequate way of addressing the relevant noise policies of the Local Plan. Finally, Mr Young, in the event that the court quashes the planning permission, also seeks a direction from the court directed to OCC as to how it should apply or take account of what he sees as the relevant retail and noise policies in the Local Plan. The application also raises the issues as to what planning documents should be consulted in order to ascertain the purpose for which planning permission was granted and as to the extent to which the court can reach its own views as to the purpose for which permission was granted if it appears to the court that the intended purpose of any part of the development is different from the stated purpose of that development.
2. Mr Young, acting in person, issued these proceedings on 23 August 2010. No point has been taken that they were issued more than three months after the grant of planning permission or that they were not issued as soon as reasonably practicable. In those circumstances, I will extend the time for issuing these proceedings until 23 August 2010. The permission application was considered by Mr V Fraser QC, sitting as a Deputy High Court Judge who refused permission in a decision issued in early October 2010. In dismissing the application, the judge stated that OCC had properly considered the noise issues raised and the matters required to be taken account of in the relevant noise policy in the Local Plan. Moreover, OCC was not required to impose noise conditions in any particular form. As to the complaint relating to OCC's suggested failure to consider its retail development policy, the judge stated that the application was not for retail use or retail facilities so that it was not necessary for OCC to take account the retail development policies provided for in the Local Plan. The judge did, however, offer the comment that it was surprising that the relevant Local Plan noise policy was not identified as a Main Local Plan Policy in the officer's report that went to OCC when considering the application. However, he also found that the report adequately covered the content of the policy even though it was not mentioned.
3. Mr Young filed an application to renew his judicial review application on 19 October 2010 and the oral hearing was listed for hearing by me on 12 November 2010. Three days before the hearing, Mr Young instructed solicitors and leading counsel to act for him and Mr Gordon Nardell QC prepared a skeleton submission and appeared at the hearing. During the hearing, counsel for Brookes, Ms Morag Ellis QC, informed the court that Brookes were to offer to enter into a planning obligation by unilateral deed of undertaking under section 106 of the Town and Country Planning Act 1990 in relation to the monitoring of the use being made of the retail facilities that Mr Young contends infringe the Local Plan retail policies. This undertaking was not necessary, so Ms Ellis contended, but its existence should provide reasonable and sufficient assurance to Mr Young's concerns about the proposed provision of retail facilities on the new campus that any remaining possible complaint about the planning permission in its present form should disappear.
4. With the consent of all three parties, I then adjourned the hearing for a short period to enable the undertaking to be implemented. It had been stressed at the hearing by Ms Ellis that it was very important to Brookes that Mr Young's challenge to the planning permission be concluded very soon since Brookes' Governing Council was on the point of deciding whether to go ahead with the whole development and, wished to be able to do so very shortly given the funding arrangements that had been made for the development would shortly expire if no decision to proceed had been taken.
5. The undertaking was executed but this did not enable Mr Young to agree to withdraw his judicial review application. Instead, his solicitor applied for a protective costs order. I directed that the forthcoming adjourned renewal hearing should be converted into a rolled-up hearing and that the substantive hearing should be argued with the continued permission hearing. I also imposed a cap on Mr Young's potential liability for costs of £17,000. I took the view that the issues raised by Mr Young merited consideration at a full hearing and that, since speed was of the essence, a combined hearing should take place on 30 November 2010.
6. A few days before 30 November 2010, Mr Young withdrew instructions from his leading counsel and solicitors and notice was given that he would represent himself at the hearing. His solicitors, in a letter to the court, informed the court and the parties that there had been no fall-out between them and Mr Young but that, due to money being tight, he needed to represent himself. He prepared the necessary court bundles and a further skeleton and argued his case with conspicuous clarity and courtesy.

Background to the planning permission dated 18 June 2010

7. Brookes is located in Headington, Oxford approximately one mile from the City Centre and the permission site, which is part of the Gipsy Lane campus is approximately 2.19 hectares in area. Brookes has grown out of the Oxford City Technical School, the Oxford College of Technology and, from 1970, the Oxford Polytechnic. In 1992, it became a University. It has grown rapidly in size, status and reputation and its present student population is about 18,600, of whom 8,500 are full-time Oxford City-based and 5,600 are based on the Gipsy Lane campus. This compares to its older neighbour's present population of 23,700. Much of Brookes is located on the Gypsy Hill campus which dates back to 1949. The application site currently contains the remains of the Darcy building, the Lloyd Building, the Department of Estate Management and the architectural workshop. The planning permission provides for the complete demolition of this part of the campus and its replacement with a New Library and Teaching Building with 20,277 square metres of floor space, an extension of the Abercrombie building to provide 2,859 square metres of floorspace and a Colonnade Building with 1,776 square metres of floorspace which will house a bookshop/café, bank, shop and medical suite. Incorporated into this development will be a new public piazza onto Headington Road which will open up the campus. Within the Teaching Building will be located a new Student Union, a student services area, a large lecture theatre and a food hall and cafés. The total estimated costs of this development exceed £130m.
8. The planning for this development has been a long and arduous process. It started in the mid-2000s and was necessitated by the shortcomings of the present campus which had grown into a disparate collection of various architectural styles which had little cohesion. In order to address these shortcomings and, at the same time, to plan for the creation of a 21^st century campus built to accommodate Brookes' Student Learning Experience involving the integration of formal classroom teaching, private library study and group-based social learning which are all provided in an integrated and supportive learning environment. The basic proposed structure of the Gipsy Lane campus site future development was addressed in the Local Plan of 2005. In May 2007, Brookes submitted a successful application to demolish the Darcy building and also submitted a Masterplan for the development of the campus which OCC endorsed with a number of caveats which were addressed in the revised Masterplan issued in 2008. This planning provided the basic outline from which the planning for the New Library and Teaching Building was undertaken. These plans were revised on a number of occasions and extensive consultation took place with the local community at each stage of the design development.
9. The designs led to an initial planning application for the New Student Centre Building in April 2009. This was refused by OCC in full council for two principal reasons. These were, firstly, that it was overbearing and oppressive in nature with its close proximity to neighbouring Headington Hill domestic properties, including Mr Young's property, and secondly because its siting, form, mass, scale and detailed design failed to relate satisfactorily to its setting within the Headington Hill Conservation Area.
10. The application itself was submitted in December 2009 accompanied by a noise assessment. Mr Young had submitted detailed objections to the earlier planning application and he submitted further detailed objections in early 2010. The application received unusually detailed consideration from the officers and OCC itself. It went through three stages of approval, by the North East Area Committee on 16 February 2010, by the Strategic Development Control Committee on 24 February 2010 and by the Full Council at a special meeting on 18 March 2010. The full Council approved the application by a vote of 24 to 10. Each stage had before it a detailed report from officers. The first report was submitted for the North East Area Committee's consideration and the second updated report for the Strategic Development Control and Full Council meetings.

Relevant policies of the Local Plan

11. OCC is, as a result of section 70(2) of the Town and Country Planning Act 1990 and section 38 of the Planning and Compulsory Purchase Act 2004, have regard to the provisions of the development plan, so far as material, and to any other material considerations. In the context of the planning permission that I am concerned with, the development plan means the Local Plan. Mr Young contends that the following policies contained in the Local Plan were not given appropriate consideration or regard:

Noise.

Policy CP.21 – Noise

Planning permission will be refused for developments which cause unacceptable noise. Particular attention will be given to noise levels:

a. close to noise-sensitive developments; and

b. in public and private amenity space, both indoor and outdoor.

The City Council will impose easily enforceable conditions to control the location, design, layout and operation of development proposals to minimise any adverse impact as a result of noise and its transmission.

Policy HS.10 – Privacy and Amenity

Planning permission will only be granted for development that adequately provides for the protection, and/or creation, of the privacy and amenity of the occupants of the proposed and existing neighbouring, residential properties. The City Council will assess each development proposal in terms of:

….

c. potential for noise intrusion;

… .

12. The local plan set out policies with regard to the control of the location and density of retail development in and adjacent to the Headington community. It is accepted and conceded by OCC that no account was taken of these policies since there was no retail development involved or included in the Gypsy Hill campus development.

Issue 1 - Noise

13. Mr Young's contentions. Mr Young contended that policy CP.21 is a fundamental policy relating to proposed developments and it imposes a duty on OCC to refuse planning permission for any development which will cause unacceptable noise. This policy was ignored, as evidence by the failure to mention it in the two Officer's Reports which formed the essential backdrop to the consideration by each committee of the OCC of the application. Furthermore, although the less well-structured and significant HS.10 policy was referred to, this policy was inapplicable since it is only of relevance to housing developments. Moreover, although mentioned in the two Officer's Reports, it was obviously and clearly not given effect to since the nature of the proposed development and the layout of, particularly, the student facilities it provided, were such that the development did not adequately provide for the protection, and/or creation, of the privacy and amenity of the occupants of the proposed and existing neighbouring, residential properties in terms of its potential for noise intrusion.
14. These contentions were supported by these submissions of Mr Young:

"The proposed development includes the new Western Court which will be sited close to the adjoining residential area on the western boundary, and which will contain all the social and entertainment facilities including the students' union, multi-use hall, café bar, café deli and food hall, all of which will have the use of the open-air first floor roof terrace and be accessed via the new public 'street' leading from Headington Road.

These facilities are intended to serve the 5,000 students based at the Gipsy Lane campus and the general public who will be free to access the Western Court 24 hours a day and use its retail food and drink outlets as well as attending the performances in the multi-use hall. Consequently, the potential for unacceptable noise to be produced, and at anti-social hours, close to the residential area on the western boundary of the campus is considerable.

… neither the Council nor the university will be able to enforce [the relevant planning conditions inserted to ensure adequate control of noise generated by the development] because they will be legally unable to control the dedicated public use of the new public 'street' for access to, or egress from, the roof terraces or the adjoining students' union."

15. OCC's contentions. OCC contended that the decision makers, all of whom were experienced in considering locally-based planning applications and in giving effect to relevant Local Plan policies, had both Policy CP.21 and HS.10 in mind and paid both due regard. In any event, they clearly had HS.10 in mind and they were of the view that both policies were sufficiently close in meaning, when considered in the context of this development, that it would not have made any significant difference if only HS.10 was considered. Contrary to Mr Young's contention, HS.10 was directly relevant to this development since it required the potential adverse effects of noise on local residents such as Mr Young that might be generated by the development to adequately provide for the privacy and amenity of the occupants of existing neighbouring, residential properties.
16. The thrust of OCC's submissions was that noise control measures required by the conditions attached to the planning permission more than adequately provided for sufficient control of noise. These measures were of three kinds and were provided for by six inter-locking conditions. Essentially, noise control was to be achieved by noise attenuation measures to be constructed and built into the development, by controlling and limiting the hours during which external use might be made of the student facilities and movement control measures would be required to control the generation of noise. These measures would be reinforced by a requirement for periodic meetings between representatives of the University, students' union and local residents and by security arrangements for the management of students and others attending evening events which would have to be approved in writing by OCC.
17. Discussion. In considering these submissions, I have particular regard to the limited role of the court in policing and supervising planning permissions. This was set out with his customary clarity by Lord Hoffmann in Tesco Stores Ltd v Secretary of State for the Environment as follows:

"The law has always made a clear distinction between the question of whether something is a material consideration and the weight which it should be given. The former is a question of law and the latter is a question of planning judgment, which is entirely a matter for the planning authority. Provided that the planning authority has regard to all material considerations, it is at liberty (provided it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit or no weight at all. The fact that the law regards something as a material consideration therefore involves no view about the part, if any, which it should play in the decision-making process.

This distinction between whether something is a material consideration and the weight which it should be given is only one aspect of a fundamental principle of British planning law, namely that the courts are concerned only with the legality of the decision-making process and not with the merits of the decision. If there is one principle of planning law more firmly settled than any other, it is that matters of planning judgment are within the exclusive province of the local planning authority or the Secretary of State."^[1]

18. OCC adduced evidence from its Chief Principal Planner to the effect that all relevant noise policies were considered and that both of the policies referred to and relied on by Mr Young were taken account of by the various decision-makers in approving both the application and the required conditions. This evidence was not, strictly speaking, necessary since it is clear from the six conditions inserted into the planning permission, and the reasons given for requiring each of them, that OCC took full account of the need to ensure that adequate arrangements were in place to protect neighbouring households from its adverse effect. OCC therefore satisfied its legal obligations of having due regard to relevant policies. Mr Young went far further in his submissions, however. He maintained that the relevant conditions were wholly inadequate to prevent unacceptable levels of, and intrusions from, noise generated by students and users of the Piazza. Noise prevention could not be adequately controlled, it had to be eliminated by re-siting the student areas well away from neighbouring residential properties. However, Mr Young was unable to produce any empirical evidence for these assertions and, as a clear counter to his approach, a detailed noise impact assessment had been undertaken prior to the submission of the planning application which was submitted with that application and was obviously taken account of by officers when recommending acceptance of the application. Overall, however, the ways in which noise was to be controlled and the extent to which noise should be a factor in deciding the application were, in Lord Hoffmann's words: "matters of planning judgment are within the exclusive province of the local planning authority". There can be no question that OCC's consideration of these matters being Wednesbury irrational, indeed quite the contrary. OCC had already rejected the earlier planning application for the proposed New Student Centre Building and it obviously gave detailed consideration to the further application from all environmental aspects including noise and produced well-structured conditions to provide what has all the appearance of well-thought out limitations, controls and monitoring arrangements.
19. It follows that this ground of challenge fails.

Issue 2 – Retail element in the development

20. Mr Young's contentions. Mr Young contended that OCC should have taken account of its relevant retail policies that have the effect, if applied, of limiting the nature and extent of retail development. This contention was supported by a detailed submission which may be summarised as follows:

(1) The planning permission and the design of the buildings for which permission was granted define the use to which any particular building may be put.

(2) No other use is permitted unless that different use is ancillary to the permitted use.

(3) In a complex development such as the new Gipsy Hill campus, it is necessary to identify the various planning units which make up the development and identify the permitted use for each separately.

(4) In determining the planning unit, a guide to its extent and composition is provided by a consideration of each separate building or part of the building. In this case, particularly by reference to the approved drawings, it can be seen that the Colonnade building is a separate unit and it contains, predominantly, retail units such as individual shops on the ground floor and medical facilities on the two upper floors. These units will be open to, and capable of being used by the public who will have ready access to them via the public Piazza that will be open to, and used by, large numbers of members of the public. The Colonnade's permitted use is, therefore, retail use.

(5) The terms of the section 106 undertaking show that the Colonnade's use is retail.

(6) In consequence, the OCC was in serious breach of the statutory requirement that, in considering the application affecting the Colonnade, it had no regard to relevant Local Plan policies concerned with controlling and limiting retail development.

21. OCC's contentions. OCC contended that the permitted development was for an entire university campus, that use was an education and the retail element of the Colonnade was ancillary to education use. The concept of a planning unit is only material and capable of being used if and when a change of use of a part of a larger development is being considered or if enforcement proceedings involving a smaller part of a development are being taken in order to control and prevent a change of use of part of a larger development. Furthermore, the proposed retail units in the Colonnade do no more than replace existing retail units on campus which are predominantly used by Brookes' students and the use of that space for that purpose is an ancillary use to the predominant education use. Finally, the section 106 undertaking does no more than provide an additional layer of monitoring of the ancillary retail use which these Colonnade units will be used for.
22. Discussion. In order to resolve these contentions, it is first necessary to determine what the use or purpose of the development is for which planning permission was granted. This is because two of the principle objectives of planning control are the control of the physical appearance of the buildings and their surroundings once the buildings have been integrated into those surroundings and the use of the land, site or buildings that are the subject-matter of the development. Since a planning permission need not confined to any particular size or to a specific building or unit of construction, the control arising from the necessity to obtain planning permission is directed to the entire development contained within the ambit of that permission which, in turn is dictated by the application. Thus, the use to which a development is to be put is to be determined by considering the development as a whole. The method of determining use is to identify the particular class of use that the development most readily falls into. Use classes, like many systems of categorisation, are broadly defined and provide a somewhat rough and ready method of use definition in large, multi-use developments. Thus, a planner or decision-maker must consider what the predominant purpose of the development is to be. The description provided by the applicant for permission will, of course, be highly material but the decision as to the use class is, ultimately, for the decision-maker since that decision will have an important influence in the decision as to whether to grant permission, as to what should be taken into account in reaching that decision and as to what conditions and section 106 agreement or undertaking should be required or accepted. In a significant, large and multi-use development, the predominant purpose must be considered and other uses will be permitted if they are ancillary to that predominant purpose.
23. In the case of the Gypsy Lane campus development, its purpose is not difficult to ascertain. The development, from the earliest consideration of the details of the 2005 Local Plan, has been considered and planned as an education use, being Class D1(c) in the Use Class Order scheme of categorisation. Any doubt as to the permitted use is to be resolved by considering the detailed planning permission document and any documents which form part of, and are incorporated into, that permission. These documents will inevitably include all the drawings which are incorporated into the permission and any other documents which, by law, have to be prepared to identify, analyse or assess the development and its impact on its environs and on the wider environment. These documents, for the Gypsy Lane campus development include the statutorily required Design and Impact Statement and, had there been one, the Environmental Impact Statement save that that Statement was not required or provided in connection with this permission. What should not be considered are the application documents, whether these are required to be submitted with the application or have been provided to support it or assist in its evaluation. A planning permission is a public document and is to be construed within its four corners without recourse to surrounding circumstances that are not ascertainable from the permission documents and are not readily capable of being consulted by any member of the public. These conclusions are readily deducible from the relevant authorities cited in argument including Wilson v West Sussex County Council^[2], R v Ashford BC ex party Shepway DC^[3] and Barnett v Secretary of State for Communities and Local Government^[4].
24. In this case, a consideration of the relevant parts of the permission, its associated conditions and drawings and the Design and Impact Statement all lead inexorably to the conclusion that the use of the development is education. It follows that the various retail units provided for in the Colonnade Building are ancillary to that use. This is particularly so given their relatively small size, the type of outlets to be provided, being outlets that are particularly aimed at the requirements of students using the education facilities of an integrated campus and the existence of similar units on the existing campus for that purpose. The fact that members of the public will be entitled to use these facilities for buying books, visiting the bank or patronising the cafés does not alter this ancillary use since members of the Brookes community will predominate.
25. Mr Young's valiant attempt to analyse the permitted use of the campus by reference to the concept of planning unit was, notwithstanding his able and valiant attempt to develop it, doomed to fail. He contended that the permitted use of the development was to be ascertained by considering every component part of the development separately. Thus, the starting point was to consider what the actual use of the individual units within the Colonnade was to be. These were described on the relevant drawing as "retail" and their use was identified in associated documents. Therefore, the retail Local Plan policies should have been consulted as part of the evaluation exercise leading to the grant of permission. Mr Young cited many authorities dealing with the concept of the planning unit, particularly Burdle and another v Secretary of State for the Environment and another^[5]. However, as is clear from a reading of these authorities, the use of the concept of planning unit to analyse the use of a development by reference to the individual units or buildings making up a larger integrated development is only permitted when a change of use or a potential breach of planning conditions is being considered. In this case, if in the future the Colonnade is transformed into a shopping arcade in general use by members of the public, it would be permissible to consider the Colonnade as a planning unit and to determine whether its transformed use was such that that retail use was no longer ancillary to the education use of the rest of the campus.
26. It is in this context that the section 106 undertaking is relevant. This provides covenants granted by deed by Brookes and referable to section 106 which restrict the use of the Colonnade Building retail use to ancillary uses incidental to education use under Class D1(c). It also provides that there will be regular monitoring of the type of customer using these facilities which will be provided to OCC annually to ascertain the mix of the customers of the retail units and, in particular, the proportion of those customers who are members of the Brookes community. These undertakings are enforceable by OCC and they clearly reinforce and buttress the requirement that the use of the retail units in the Colonnade Building will be and will remain ancillary to the education use of the Gypsy Lane campus as a whole.

Conclusion

27. In the result, Mr Young's challenge to the planning permission fails and must be dismissed.

Note 1    [1995] 1WLR 759, HL, page 780F-H.    [Back]

Note 2    [1963] QBD 764, CA.    [Back]

Note 3    [1999] PLCR 12, Keene J.    [Back]

Note 4    [2009] EWCA Civ 476, CA.    [Back]

Note 5    [1972] 3 All ER 240, CA at page 244 b – h.    [Back]