QUEEN'S BENCH DIVISION
SITTING AT MANCHESTER CIVIL JUSTICE CENTRE
B e f o r e :
| THE QUEEN
(on the application of GREG PLUNKETT)
|- and -
|SEFTON METROPOLITAN DISTRICT COUNCIL
Paul Tucker QC (instructed by The Solicitor, Sefton Metropolitan District Council) for the Defendant
The Interested Party was not represented and took no part in the proceedings
Hearing date: 3 February 2011
Further written submissions served on 7 February 2011
Crown Copyright ©
Mr Justice Silber:
"22. Having considered the authorities, the principles I deduced to be applicable are as follows:
(i) the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs;
(ii) it will ordinarily be irrelevant that the claimant is legally aided;
(iii) the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties;
(v) in the absence of a good reason to make any other order the fall back is to make no order as to costs;
(vi) the court should take care to ensure that it does not discourage parties from setting judicial review proceedings, for example, by a local authority making a concession at an early stage."
"(i) Sefton failed to consider the proximity of the West Birkdale Conservation Area to the application site and the effect of the proposal on the character and appearance of the Conservation Area for the purposes of (a) publicity of the application contrary to regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 and (b) the merits of the decision contrary to Section 70(2) of the Town and Country Planning Act 1990 and Policy HC1 of the Unitary Development Plan and polices HE6, HE7, HE9 and HE10 of Planning Policy Statement 5; ("Ground 1")
(ii) Sefton failed to have regard to the Supplementary Planning Guidance on House Extensions, as conflicts with the guidance were not addressed, or the Council reached conclusions on the Guidance which were irrational; ("Ground 2")
(iii) Sefton failed to consider the planning application which was actually before it, contrary to section 70 of the Town and Country Planning Act 1990 as the committee's consideration and the decision notice was of a plan which had been withdrawn and replaced; ("Ground 3")
(iv) The committee report failed to include a list of background papers, contrary to section 100D of the Local Government Act 1972, meaning that there is no record of the documents considered by officers in preparing their report to the committee." ("Ground 4")
II. The Background
"The Committee considered the report of the Planning and Economic Development Director that advised a claim for judicial review and sought the Committee's views in respect of defending the case. The report recommended the Officers be authorised to negotiate a settlement of the case with the claimant.
That the recommendation be not agreed and the Officers not be authorised to negotiate at the settlement of the case with the claimant".
III. The Rival Submissions on Conduct
"42. [Counsel] told us that if we concluded, contrary to his submissions, that the grant of permission was unlawful, the Interested Party was prepared to give an undertaking to the Court, to be incorporated into a section 106 planning obligation so as to bind the land that it would not commence development of the Freight Distribution Centre until screening of both it and the airport work had been undertaken by the Defendant under the EIA regulations. It is difficult to see what purpose would be served by the court's acceptance of such an undertaking that would not equally well be served by the quashing of the permission. A planning permission is a public document. Third party rights, e.g. the right of agricultural tenants on the land, may be affected by the existence, or otherwise of a planning permission. There would have to be some very good reason to persuade the court that acceptance of an undertaking that unlawful permission would not be implemented, or would otherwise be implemented, only on certain terms, would be a more appropriate course than a decision to quash an unlawful permission. No such reason has been identified in this case. It follows that the EIA challenge to the permission succeeds and the permission must be quashed".
IV. Ground 1
"(1) This regulation applies where an application for planning permission for any development of land is made to a local planning authority and the authority think that the development would affect the setting of a listed building or the character or appearance of a conservation area".
"The question for the purposes... of the 1990 Regulations is whether the development would affect the setting of the listed building, not whether it would affect it so seriously as to justify a refusal of planning permission. The extent of the effect, and its significance in terms of the setting of the particular listed building, are precisely the matters on which English Heritage's expert views should be sought."
"the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the proprietary of the decision making process into the forbidden territory of evaluating the substantive merits of the decision"
per May J (as he then was) in Smith v North Eastern Derbyshire Primary Care Trust  1 WLR 315  and applied by Cranston J in R (Copeland) v Tower Hamlets LBC  JPL 40, 47 .
V. Grounds 2, 3 and 4
(i) Breach of paragraph (c) of the third principle in relation to "poor outlook" which provides that "although the planning system cannot protect over viewers if your extension would have an overbearing or oppressive effect over nearby properties this may lead us to reject your planning application. We will assess the situation in a similar way to how we assess over shadowing";
(ii) The defects in the pitched roof across part of the proposed property because there was a principle that "the general pitch (angle) and shape of the roof should match that of the existing building the ridge on the extension should be lower than that of the main building. We prefer pitched roof as they look better than a flat roof and have lower maintenance costs"; and
(iii) The extension beyond three metres from the back of the wall of the property