QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF HARRISON||Claimant|
|RICHMOND UPON THAMES LONDON BOROUGH COUNCIL||Defendant|
WordWave International Limited
A Merrill Communications Company
165 Fleet Street London EC4A 2DY
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(Official Shorthand Writers to the Court)
Mr D Smith (instructed by London Borough of Richmond) appeared on behalf of the Defendant
Crown Copyright ©
"(4A)A local planning authority in England may also decline to determine a relevant application if—
(a)the condition in subsection (4B) is satisfied, and
(b)the authority think there has been no significant change in the relevant considerations since the relevant event.
(4B)The condition is that—
(a)in the period of two years ending with the date on which the application mentioned in subsection (4A) is received the Secretary of State has refused a similar application,
(b)the similar application was an application deemed to have been made by section 177(5), and
(c)the land to which the application mentioned in subsection (4A) and the similar application relate is in England."
Further subsections contain relevant definitions as follows:
"(5)A relevant application is—
(a)an application for planning permission for the development of any land;
(6)The relevant considerations are—
(a)the development plan so far as material to the application;
(b)any other material considerations.
(7)The relevant event is—
(a)for the purposes of subsections (2), (4) and (4B) the refusal of the similar application;
(8)An application for planning permission is similar to another application if (and only if) the local planning authority think that the development and the land to which the applications relate are the same or substantially the same."
In summary therefore the section confers power on a planning authority to decline to determine a planning application if they have formed two opinions. The first is that the new and previous (in this case deemed) applications and the land to which they relate are "the same or substantially the same" and, secondly, that there has been no significant change in the local development plan or any other material considerations.
"PURPOSE OF POWERS
4. These new powers are intended to inhibit the use of repeated applications that are submitted with the intention of, over time, reducing opposition to undesirable developments. They are not intended to prevent the submission of a similar application which has been altered in order to address objections to the previous application. Applicants should be encouraged to enter into pre-application discussions to minimise the likelihood of their applications being rejected.
8. Local planning authorities should use the power to decline to determine repeat applications only where they believe that the applicant is trying to wear down opposition by submitting repeated applications. If an application has been revised in a genuine attempt to take account of objections to an earlier proposal, the local planning authority should determine it.
9. If an applicant thinks that an authority has acted unreasonably in declining to determine a repeat application, he or she is able to seek judicial review of that authority's decision.
12. Where an authority considers that an application is similar, it is not automatically obliged to decline to determine the application. However, local planning authorities should be mindful of the intention behind this power. It can be a major cause of frustration to members of the public and the local community to have to deal with a repeat application when they have already dealt with the
original application and seen the development be refused.
13. Local planning authorities should decide what constitutes a "significant change" in each case. An authority may consider that a change in a Development Plan Document or other material consideration will be "significant" for the purpose of this section if it is likely to alter the weight given to any planning consideration in the determination of an application.
14. In considering whether to exercise its power under sections 70A or 81A, an authority will sometimes be faced with a doubtful case. In such a case, the authority should generally give the benefit of the doubt to the applicant and determine the application. No conclusion about the likely success of an application should be drawn from the decision by a local planning authority not to exercise its powers under sections 70A and 81A.
16. An application which a local planning authority declines to determine under Section 70A or 81A should be returned to the applicant and should then be regarded by the authority as withdrawn. Applicants have no right of appeal against a local planning authority's decision not to determine an application except where the authority has failed to give notice of their decision not to determine an application (see section 78(2)(aa) of the 1990 Act). An applicant may, however, apply for judicial review of an authority's decision to exercise its power under these sections."
"Eel Pie Island
Early maps show that Eel Pie Island was originally 3 separate islands, which became two and subsequently one. The eastern and western wooded ends were originally separate islands, and were also susceptible to flooding which is why they have remained uninhabited to the present day. The island has been known by a number of different names including: Twickenham Ayte, Goose Eyte, and Parish Atye. Licensed premises are recorded as early as 1743, and by 1786 an inn known as the White Cross was well established. It was replaced in 1830 by a much grander building renamed the Island Tavern. It proved to be a very popular spot for boat trips and excursions and the visitors readily consumed the eel pies which were part of its fare. By the mid C19th it had become known as the Eel Pie Tavern and the island took its current name.
By 1893 the appearance of the island had changed dramatically with the establishment of boatyards, the construction of the Twickenham Rowing Club boathouse and a ferry operating between Water Lane and the island. In 1899 the hotel was sold and some of its land was auctioned off as lots for development as private homes or as businesses. As the C20th progressed the popularity of the hotel declined steadily as tastes changed. By the 1950's the hotel found a new lease of life as a jazz club and was successful enough for the owner to fund the construction of the footbridge (opened 1957) linking the island to Twickenham. The hotel continued to attract young people with the appearance of fledgling pop groups like the Rolling Stones. Sadly, by the late 1960's the hotel was empty and fell into disrepair and after a fire it was demolished in 1971. The site was redeveloped with modern townhouses."
The study included a character appraisal which, as far as the part of the island surrounding the application site is concerned, included the following:
"The moorings and slipways house a constantly changing collection of river craft creating an interesting and active foreground for the buildings. This industrial frontage provides a lively contrast to the leafy character of this stretch of the Thames. The island provides unrivalled views of Twickenham which encapsulate its remaining village character and links to the river.
Many craft/art related small businesses attracted by low rents and unusual surroundings mingle with the boatyards. From amongst the clutter and apparent chaos a real sense of energy emanates. The island houses an interesting cross section of inhabitants forming a slightly Bohemian but close knit community."
Below those paragraphs a box headed "Problems and pressures" noted as a problem "loss of the river related industry and its associated buildings and equipment".
"Eel Pie Island has its own distinct character as an eclectic mixture of river-related industry and residential development. ... The northern section of the island is characterised by boat building yards and related activities on an informal layout. This is the closest part of the island to Twickenham and makes a significant contribution to the area's character."
"The floating structure, by reason of its design, size and location neither conserves nor enhances the open character and nature of the Metropolitan Open Land in which it is situated, fails to preserve or enhance the special character of the Thames Policy Area or the character or appearance of the Twickenham Riverside Conservation Area and its current residential use is not considered to be a functionally related use for this riverside location. It is thus inappropriate within its context with the surrounding boats and the working waterfront and is therefore contrary to [various stated policies]."
The steps required to be taken were to cease the use of the mooring for residential purposes and dismantle the floating structure from the piles imbedded into the river bed and remove it from the site permanently.
He then continued:
" 43. The Conservation Area Statement describes the northern section of Eel Pie Island as 'characterised by boat building yards and related activities on an informal layout'. The character appraisal in the Twickenham Riverside and Queen's Road Conservation Area Study (CAS) states that 'The moorings and slipways house a constantly changing collection of river craft creating an interesting and active foreground for the buildings.' The working boatyard character is therefore the key asset.
44. Whilst the level of movement of craft and numbers [of] permanent residential boats was disputed by the parties no definitive evidence was put forward by either side. The mooring at Phoenix Wharf is clearly visible from the Twickenham riverside. The introduction of an additional permanent and static houseboat reduces the scope for activity and movement, other than simple vertical movement on the tide, and, as such, fails to preserve or enhance the character of the Conservation Area and fails to protect the working character of the waterfront in this respect. The mooring of a structure or houseboat for residential purposes at the appeal site is therefore contrary to UDP Policy ENV 26."
"59. On ground (f) the appellant pleads that modifications could be made to the houseboat to reduce its size or alter its design. The alterations proposed by the appellant in a planning application Ref. 10/3716/FUL would not reduce the harm or remedy the breach since the mooring would still be occupied by a static residential houseboat. The appeal on ground (f) therefore fails in this respect.
60. The appellant also pleads that the notice should not require the residential use to cease. However, as reasoned above, the use of the mooring for residential purposes is not lawful. Allowing the ground (f) appeal in this respect would have the effect of granting planning permission for residential use which has been identified as harmful. The ground (f) appeal therefore fails in this respect."
"1.5. The type of houseboats using the mooring can be controlled by condition and Mr Harrison will accept a condition that a houseboat moored in this location should be of single storey only. A condition relating to the design of the houseboat in terms of it being of traditional Dutch barge design would also be acceptable if the Council consider it necessary although there are doubts about its ability to achieve sufficient level of precision, and we do not consider it necessary."
"The industrial nature of this site has changed significantly since this study was carried out although we are advised that even before the fire the moorings in front of Eel Pie Marine and boatyard were primarily used by houseboats. There is certainly now a mixture of river craft with some movement of boats but the vast majority of the boats moored in front of Eel Pie Boatyard and Phoenix Wharf remain stationary for long periods of time with just occasional movement when boats are moved from one part of the site to another to accommodate access to the Eel Pie Boatyard Slipway or to accommodate new arrivals or for other reasons."
The planning statement also referred to the relevant conservation area statement most recently published by the Council in 2009. In relation to Eel Pie Island it quoted a passage in the statement saying:
"The northern section of the island is characterised by boat building yards and related activities on an informal layout. This is the closest part of the island to Twickenham and makes a significant contribution to the area's character."
It asserted in relation to that, that:
"Whilst this was a characteristic of the northern part of the island when the conservation area was first designated there is now only one commercial boatyard on the island; that at Eel Pie Slipway to the west of the application site. The character of this part of Eel Pie Island is examined in more detail in the Heritage Statement prepared by the Heritage Collective and submitted with this application."
(I should add that it is common ground that in addition to Eel Pie Slipway there is a marine business operated at Phoenix Wharf by Mr Harrison's tenant.)
"1.9 I note that the Council's reason for issuing the notice was the 'design size and location' of GB Vision, and not the fact that it was moored permanently. The Inspector did not have the benefit of the evidence of a heritage expert and I am asked to consider and assess the impact of mooring a different size and design of boat. The primary issue for me to consider therefore relates to the effect of a permanent houseboat moored at Phoenix Wharf on the character and appearance of the Twickenham Riverside Conservation Area. In this instance the specific effect of the existing houseboat 'Liquid Sky' a Dutch barge is assessed, as it will be similar to that of any single storey traditional houseboat. In order to understand the effects of a houseboat of this type being moored in this location, the significance of the conservation area as a designated heritage asset is appraised."
The report referred to the conservation area study, noting that it appeared to described Eel Pie Island before the 1996 fire and suggested that its statement that "the mooring and slipways house a constantly changing collection of river craft creating an interesting and active foreground for the buildings" should be read in the context of the time it was written.
"4.10 Whatever may have been the position in the mid-1990's, when the conservation area study was written, the contribution of the northern shore of Eel Pie Island to the character and appearance of the conservation area is not dependent on the movement of vessels to and from its moorings; it is much more complex and multi-layered. Its greater contribution comes from its historical development and historical associations.
4.11 The presence of vessels does make a contribution to the character of Eel Pie Island, and this has been the case for decades, even when the Island was being visited by users of the hotel in the 19th century. If the site were to be occupied by a boat such as 'Liquid Sky' on a permanent basis this would cause no discernible harm to the character of appearance of the conservation area. On the contrary it would preserve and enhance the area by allowing the site to contribute to the character of the views of Eel Pie Island from Twickenham Riverside and the views from the island itself."
"As you are aware an enforcement notice was upheld by the Planning Inspectorate in September 2011 to cease the use of the mooring at Phoenix Wharf for residential purposes and remove the floating structure from the site, with the period of compliance being 3 months of the date which the notice takes effect.
Within the Inspectors decision notice, the issue of a residential mooring at this site was considered."
The email then set out paragraphs 43 and 44 of the Inspector's decision, and continued:
"Given a very similar scheme to what is now proposed has been dismissed by an Inspector appointed by the Secretary of State, and there being no significant change in considerations since September 2011 (despite the adoption of the Development Management Plan), the Local Planning Authority has declined to determine your application."
This is the decision challenged in this judicial review, though Mrs Townsend for the claimant realistically accepted that the Council was entitled to rely on further reasons given in subsequent exchanges by a more senior officer who reviewed the team leader's decision.
"I note your arguments to validate the case including the Conservation Study but these do not go to the heart of this case in that a Planning Inspector has dismissed an appeal in the last two years which makes it clear he was opposed to a structure or houseboat for residential purposes in principle in this location for the reasons given in the decision notice.
I do not see why the Local Planning Authority should entertain an application for the same form of development, which was rejected on appeal, given that there has been no material change in circumstances since that decision. It is not a matter of the appearance of the craft but its use.
I do not say this lightly but I do not think there is any benefit in meeting over this matter as it remains one of principle.
I note you feel differently & we have reviewed your points but it would be plainly wrong for me to take an alternative view from my colleague in these clear circumstances."
"The Local Planning Authority was very mindful of the consequences of taking the decision to decline to determine the application. Officers have assessed the submitted documents against the most recent appeal decision (APP/L5810/C/10/2140461) and from this it was concluded there have been no genuine attempts to overcome the in-principle objection of a house boat at the site, nor had there been a significant change in circumstances. As outlined in Circular 08/2005 it is for the Local Planning Authority to decide what constitutes a significant change.
You suggest that the heritage statement and the willingness of the applicant to accept a condition to restrict the house boat to a single storey as a 'significant change' and a 'genuine attempt to overcome objection'. However, in this instance the Local Planning Authority does not share that opinion.
Whilst recognising the conservation study was published in 1999, an analysis of the special character of this part of the conservation area was discussed at length at the Public Inquiry during the cross examination. The Inspector, when carrying out the site visits, would have gained an up to date knowledge & understanding of the character and appearance of the Conservation Area. From the evidence provided and the site visit, the Inspector concluded in paragraphs 43 and 44:
[He set out the paragraphs. The email continued:]
On this basis the Inspector found there to be an in-principle objection to a static houseboat, with it harming the working character of the waterfront. Therefore, the submission of the heritage statement does not overcome this objection, nor can this be considered as a significant change in circumstances.
You suggest that a condition could be imposed to restrict the houseboat on this mooring to single storey, as the main concern in the above appeal was scale and design. This is a misconception in the Local Planning Authority's view. As outlined above, the Inspector found it to be the permanent and static nature of the houseboat and reduced scope for activity and movement that causes the harm to the conservation area. Further, the Inspector stated in paragraph 59:
[He set out that paragraph. The email continued:]
On the basis of the above, it can only be seen that this is another attempt to seek permission through the submission of a repeat application for a house boat which, as highlighted in paragraph 12 of Circular 05/2008, can be a major cause of frustration to members of the public and the local community to have to deal with such when they have already noted the original application has been refused &, in this case, that refusal has been thoroughly tested in a 4 day Public Inquiry which resulted in the appeal being dismissed.
With respect to the case law you outlined, this is not deemed comparable nor alters the original decision as outlined in Ms Thatcher's email dated 23 April. The Local Planning Authority has made the decision to decline to determine the application in accordance with Section 70A, and the advice contained in Circular 08/2005. On that basis, I have asked for your application to be returned to you.
With regard to process of decision making to decline to determine the case this is evidenced by the email to you setting out the reasons why it has been declined.
My office does not need a policy, as such, on this matter under s70A as it is set out in law.
I anticipate you will not be happy with this reply but it would be wrong for my office to enter further futile discussions given the in-principle objection, supported on a recent appeal decision."
He also referred to the advice in paragraph 4 of the Circular recommending applicants to engage in pre-application discussion to minimise the likelihood of applications being rejected under section 70A.
"Re. House Boat Community - Eel Pie Island.
As an active user of the River Thames I am reporting what I consider to be a flagrant breach of planning law in the London Borough of Richmond.
Over the past few years I have noticed an ever increasing number of houseboats occupying the moorings connected to the Eel Pie Boatyard Limited premises at Eel Pie Island, opposite Orleans Gardens on the Twickenham Embankment. This can be confirmed by use of Google Earth.
These houseboats are clearly and blatantly in permanent residential use. This is in breach of the Unitary Development Plan, the Metropolitan Open Land Policy and the Twickenham Conservation Area study.
The positioning of this houseboat community in front of the Eel Pie Boatyard Limited premises precludes almost entirely the use of such for boat repairs.
There is also an environmental health issue as it appears from what is seen floating in the river that these boats (all or some) discharge their sewage directly into the river.
I attach for reference photographs showing the houseboats on the moorings at Eel Pie Boatyard Limited premises.
The matter should be resolved by the removal from the aforesaid moorings of all houseboats in residential use which would then allow proper use of Eel Pie Boatyard and stop the pollution of the Thames by raw sewage.
I look forward the receiving the results of your findings once you have investigated my assertion."
"Having reviewed the planning history of the site, I have established that the pontoon that provides a mooring for the houseboats is lawful and that it has continually been used to moor houseboats for more than ten years. As the use of the pontoon is lawful and there are no restrictive conditions imposed, the Council cannot control the number of boats moored here or in fact to one another.
As I have previously advised, the only unauthorised mooring the Council is aware of (in this vicinity) is the one in front of Phoenix Wharf. Please note the Council is actively pursuing this matter."
"Whilst I understand your concern in the above matters, as there is no breach of planning control, the Council as Local Planning Authority cannot instigate formal enforcement action against the development. Consequently I do not propose to take any further action in respect of the number of boats moored at this site. I am sorry that this is not the outcome that you would have wished."
"I have established that the pontoon in front of Eel Pie Slipways has been in situ for more than 20 years and therefore it is lawful. Provided that is has been continually used to moor houseboats for more than ten years, the house boat community here would be lawful.
If you are aware that the pontoon has been used to moor houseboats for less than ten years I will be happy to look into this matter further?"
"It has come to our attention that the Council may recently have expressed the view that permanent residential use of moorings to the pontoon in Eel Pie Boatyard is lawful. This is seen by our client as an important factor in any application for planning permission at the Phoenix Wharf mooring and in the judicial review."
The letter went on to ask four questions as follows:
"a. Whether officers in the Council's enforcement team have assessed whether the residential use of any or all of the houseboats moored to the pontoon in front of Eel Pie Boatyard is lawful at any time since the planning inquiry before the Inspector in 2001.
b. If so when the assessment was made and what the conclusion was (boat by boat if possible - otherwise generally).
c. Whether the Council currently intend to take enforcement action against any of the boats moored to the pontoon in front of Eel Pie Boatyard.
d. Whether the Council agree that if they have concluded that one or more of the boats moored to the adjacent pontoon is unlawfully used for permanent residential occupation, this represents a material change of circumstances since the Inspector's decision."
The letter warned that the reply might be shown to the court.
"(a) There has not been an assessment of the lawfulness of residential use of houseboats in front of the Eel Pie Boatyard. The enforcement officer dealing with the matter is of the view that the pontoon appears to be lawful in that it has been in situ for over 10 years. However, this does not apply to the mooring posts that are in front of this property or to the residential use of moored boats.
(b) In the light of the above this has not arisen.
(c) An enforcement investigation has not currently been opened in respect of the Eel Pie Boatyard.
(d) The Council has reached no conclusion in this regard.
Please telephone me if you would like to discuss this further."
"The same or substantially the same application"
"17. So far as similarity is concerned, Mr Willers accepts, and rightly accepts, that he cannot argue that the applications are not similar. They are both, of course, for permission to site a residential caravan or caravans for the purpose of providing a home for gypsies. Of course, the details differ and the parties differ, but that does not prevent the applications being similar. The statute does not require them to be identical; it would clearly be an abuse of language to suggest that they were not similar."
"Change in the relevant considerations"
"It is plain from paragraph 5 that the Secretary of State is indicating that this is a power which should be used in only somewhat narrow circumstances and, effectively, only where there was reason to believe that an applicant was misusing the right to apply for planning permission in attempting to exert pressure upon, as is put, the local communities. As a matter of fact in this case, there was certainly no evidence of any opposition from any in the immediate vicinity who would otherwise be expected to be able to object and who should have been notified of the application. But I accept, and indeed it must be obvious, that the reference to wearing down the resistance of local communities is also apt to apply to the local planning authority which, if bombarded again and again with similar applications may simply get fed up with having to refuse, or there may be those who are minded, as a result, to change their minds. But it is that sort of misuse, according to the guidance, that is intended to result in a decision to refuse to deal with a planning application made in accordance with section 70A."