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
		20/12/2013

HHJ Birtles :

Introduction

1. This is a claim for judicial review seeking to quash a planning permission granted by the Defendant in relation to land owned by the Interested Party dated 18 June 2012.
2. The Claimant is represented by Mr Wayne Beglan of counsel. The Defendant is represented by Mr Stephen Whale of counsel. I am grateful to both counsel for their written and oral arguments. The third party has taken no active part in the claim.
3. I heard the claim on 8 November 2013. At the conclusion of the hearing I reserved judgment.

The factual background

4. This claim concerns the grant of planning permission under reference 12/0883/VAR for the variation of approved plans (under condition 7 of permission 08/2537/FUL – Demolition of existing cafe/store and construction of new café/restaurant facility) proposing reduced building footprint and retention of shelter at Longboat Cafe, Marine Parade, Budleigh Salterton, Devon EX9 6NS ("the 2012 Permission"). The 2012 Permission was granted on 18 June 2012.
5. The site has a planning history. In 2008 the Interested Party submitted an application to the Defendant for the demolition of the existing cafe/store and for the construction of a new cafe/restaurant facility ("the 2008 Application"). The 2008 Application was dealt with by the Defendant under reference 08/2537/FUL.
6. The 2008 Application resulted in the Defendant granting the 2010 Permission. That permission has not been fully implemented. It was not possible for the scheme approved by the 2010 permission to be completely carried out because it involved development taking place on land not within the ownership or control of the Interested Party and the Interested Party has not been able to acquire that land or secure the consent of the landowners.
7. Faced with the impossibility of carrying out the development approved by the 2010 Permission the Interested Party applied in late 2011 for planning permission for an alternative scheme which was described as the demolition of existing cafe and construction of a new cafe facility ("the 2011 Application"). The 2011 Application was dealt with by the Defendant under reference 11/2764/FUL.
8. The 2011 Application resulted in the Defendant refusing planning permission on 14 February 2012 ("the 2012 Refusal"). The 2011 Application was refused for the following reason:-

"1. The proposed development by reason of the building's scale and height represents an over development of the site which combined with its design and pallet of materials would cumulatively harm the character of the area and the setting of the Conservation Area, Coastal Preservation Area and World Heritage Coast. The proposed development is therefore considered contrary to guidance in PPS1 (delivering sustainable development), PPS5 (Planning for the Historic Environment and Circular 07/09 (Protection of World Heritage Sites), Policies C05 (Coastal Preservation Areas), CO6 (quality of new development), and CO7 (historic settlements and buildings) of the Devon Structure Plan, Policies D1 (design and local distinctiveness) and EN11 (preservation and enhancement of conservation areas) of the adopted East Devon Local Plan and guidance contained within the Budleigh Salterton Design Statement.)"

9. The Interested Party did not appeal against the 2012 Refusal.
10. On 16 February 2012 the Interested Party made an application pursuant to section 96A of the Town and Country Planning Act 1990 ("the section 96A Application") to add an additional condition to the 2010 Permission reciting the approved plans.
11. The section 96A Application was dealt with by the Defendant in February-March 2012 and resulted in the Defendant adding an additional condition ("the Additional Condition") to the 2010 Permission as condition 7 which required the permitted development to be carried out in accordance with a series of plans which were then listed.
12. Having secured the imposition of the Additional Condition the Interested Party subsequently made an application to the Defendant pursuant to section 73 of the Town and Country Planning Act 1990 for the variation of condition 7 ("section 73 Application").
13. The section 73 Application was dealt with by the Defendant under reference 12/0883/VAR and resulted in the Defendant granting a new planning permission on 18 June 2012 i.e. the 2012 Permission. The proposal being described as:

"Variation of approved plans (under condition 7 of permission 08/2537/FUL – demolition of existing cafe/store and construction new cafe/restaurant facility) proposing reduced building footprint and retention of shelter."

The legal background

14. In determining a planning application the general duty laid upon a planning authority is found in section 70(2) of the 1990 Act which provides that:

"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as is material to the application, and to any other material considerations."

15. Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides as follows:

"If regard is to be had to the development plan for the purposes of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."

16. Section 73 of the 1990 Act provides:

"73-(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.

(2) On such an application the local authority shall consider only the question of the conditions subject to which planning permission should be granted and –

(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly and

(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.

(3) Special provision may be made with respect to such applications –

(a by regulations under section 72 as regards the form and content of the application and

(b)by development orders regards the procedure to be followed in connection with the application.

(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it relates has to be begun and that time has expired without the development having been begun.

(5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which –

(a) a development must be started;

(b) an application for approval of reserve matters (within the meaning of section 92) must be made."

17. A decision-maker must have regard to all legally relevant considerations in reaching his decision: R (Alconbury Developments Limited) v. SoSETR [2003] 2 AC 295 at paragraph 50 per Lord Slynn.
18. A failure to take into account a matter which the decision-maker is bound to consider is capable of being of analysed as a traditional public law ground of challenge as constituting unreasonableness: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Grene MR.
19. The materiality of an earlier decision on a similar application to a consideration of a later application is well-established: Havard v. South Kesteven District Council [2006] EWHC 1273 (Admin) paragraph 12.
20. This claim concerns criticisms of officer advice to members in a report, as to which the leading authorities are R v. Poole Borough Council ex parte Beebee [1991] JPL 643 and Oxton Farms v. Selby District Council [1997] EWCA Civ 4004. The former case makes the point that officer's reports are not to be read as though they were taxation statutes to be carefully construed, and that local authority officers who draft those reports are not by training or inclination in general endowed with the skill of Parliamentary draftsmen. In Oxton Farms Judge LJ (as he then was) indicated that 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 there after are left uncorrected at the meeting of the planning committee before the relevant decision is taken.
21. Where there is a conflict in the written evidence not otherwise able to be resolved, the Court must accept the account given in the Defendant's evidence: Flattery v. SSCLG [2010] EWHC 2868 (Admin) at paragraph 56.
22. Finally, the Court, which always has a residual discretion, will, in the case of an alleged failure to take a relevant matter into account, consider quashing the planning decision only if it is clear that there is a real possibility that the consideration of the matter would have made a difference to the decision: Bolton Metropolitan Borough Council v. Secretary of State for the Environment (1991) 61 PCR 343 at 353.

The grounds of challenge

23. The Claimant was granted permission in respect of Grounds 2 and 3 contained in his Statement of Facts and Grounds. I take each in turn.
24. Ground 2 is failing to take the relevant matters into account. This has two components. First, setting aside the 2012 refusal and second, failing to take into account the fact that the 2010 permission could not be fully implemented.
25. Mr Beglan submits that the officer's approach to the 2012 refusal is clearly set out in the report which advised the committee to "set aside the 2012 refusal in its deliberations". This was an essential paragraph in the advice and was not returned to at any later stage in the report. The advice should have been that the 2012 refusal was a relevant matter which the committee should take into account and could decide as a matter of planning judgment to give no weight or little weight to it. Mr Beglan submits that that advice was in error. He elaborates these submissions in paragraphs 9-19 of his skeleton argument and in his oral submissions. Mr Beglan maintains that the 2012 refusal was a relevant consideration and the effect of the advice was seriously to mislead the committee about material matters which were thereafter left uncorrected: Oxton Farms v. Selby District Council [1997] EWCA Civ 4004. He compares this approach with the approach taken in the officer report for the 2013 refusal where he says a different approach was taken.
26. It is therefore important to look at the relevant documents. First, the officer report. Second, the committee meeting. Third, the planning permission itself. The planning permission was a variation, hence the VAR reference. There were 5 reasons for granting planning permission recorded on its face. Thus:

i) compliance with eight development plan policies;

ii) no harm to the natural beauty in the Area of Outstanding Natural Beauty;

iii) no harm to conservation objectives;

iv) no harm to the World Heritage Site; and

v) acceptable minor material amendment to planning permission 08/2537/FUL: Core Bundle page 62.

27. I accept Mr Whale's submission that even if the officer report had advised members to "set aside" the 2012 Refusal, the Council did not grant permission on that basis.
28. The officer report must be read as a whole: R. v. Poole Borough Council ex parte Beebee [1991] JPL 643 at 652 per Schiemann J (as he then was); Oxton Farms v. Selby District Council and another [1997] EWCA Civ 4004 per Judge LJ (as he then was).
29. The officer report is at Core Bundle pages 35-59. It is a full and detailed report. It begins with an Executive Summary: Core Bundle page 36. It says this:

"An extant planning permission exists for the redevelopment of the existing cafe, and adjacent shelter. The current scheme seeks an alternative to that by scaling back the plans and leaving the existing shelter completely untouched. The proposed scheme retains the style, form and materials as previously proposed but simply reduces the mass and scale of the proposed development.

The Longboat Cafe which is recognised as not being of listable quality can already be demolished. The relationship between the proposed development as a replacement building and the adjacent conservation area remains acceptable together with the impact on the Area of Outstanding Natural Beauty.

An assessment has been undertaken with regard to the outstanding universal value of the World Heritage Site. As an identified gateway town, Budleigh Salterton can play an important role in fulfilling appropriate access to the heritage coast with suitable high-quality facilities. The current scheme which is of a more modest scale than currently approved would not harm the appreciation of or the natural processes which have and continue to form the World Heritage Site. Whether technically inside or outside the boundary of the World Heritage Site, the impact on its setting remains acceptable. It is considered that the proposed development has the potential to enhance the tourism offer the town can make and represents economic investment which is carefully directed and managed, and which does not harm internationally, nationally and locally important environments. "

30. It will immediately be noted that this executive summary does not recommend or advise that the 2012 refusal can be "set to one side" or "set aside". I accept Mr Whale's submission that this reflects the peripheral nature of the 2012 refusal to the report's reasoning and conclusions, as borne out by the five reasons for granting planning permission.
31. The officer report has a substantial section on the results of consultations: Core Bundle pages 37-48 including a very substantial section devoted to representations by Natural England which refer to the 2012 Refusal: Core Bundle page 42 as do the representations made by the Jurassic Coast World Heritage Team: Core Bundle page 45.
32. The officer report then has a section which describes the planning history including the 2012 refusal, refers to the relevant policies and then has a section headed "Analysis": Core Bundle pages 49-52. This includes the paragraph criticised by Mr Beglan. It says this:

"Previous Refusal

The previous refusal of permission for a different proposal in February 2012 does not set a precedent for the current application this is because the February scheme was a different stand-alone scheme. It was not a variation of the currently approved scheme and therefore while representing a chapter in the history of this site should not be seen as setting a precedent in the determination of the current application – it should rather be set to one side. It is the previous consent for the site which is relevant in terms of a precedent."

33. The report concludes with a section headed "Main Issues" which refers to a number of matters: Core Bundle pages 52-56 and concludes with its recommendation that permission should be granted together with the suggested conditions.
34. I reject Mr Beglan's submission that the relevant passage he complains of advises members to "set aside" the 2012 refusal and the Council did not grant permission on that basis. The advice given in the disputed paragraph is factually and legally correct. There was no error of law.
35. Furthermore, I have the benefit of an officer's contemporaneous note of the committee meeting: exhibit to witness statement of Ms Hannah Lisa Whitfield dated 14 May 2013: Trial Bundle pages 159-169. There is no evidence in the note of any advice from the chairman or anyone else that the committee could not take the February 2012 Refusal into account. I reject Mr Daniel's recollection in paragraph 8 of his second witness statement: Trial Bundle page 123. I do so on the basis of Flattery v. SSCLG [2010] EWHC 2868 (Admin) at paragraph 56 per Lindblom J. Mr Beglan's second submission is that the Defendant failed to take into account the fact that the 2010 permission could not be fully implemented. He submits that the committee were advised that the 2010 permission could reasonably be considered to be capable of implementation, because it was not possible to fully complete the current proposal. Mr Beglan submits that the reason the 2010 permission was incapable of being fully implemented was because the Town Council, which was opposed to the proposed redevelopment of the site, held land that was necessary to allow 2010 permission to be fully implemented. That was the position as at the date of the decision. Mr Beglan submits that the advice was in error because there was no reasonable prospect of the Interested Party demolishing the building housing the existing enterprise without being able to fully implement the 2010 permission, and no evidence to support the advice given.
36. The material part of the officer report says this:

"Status of original application

It is recognised that due to land ownership difficulties it is not possible to fully complete the current approval. However ownership is always a different issue from planning and in this instance it would be possible and not unreasonable for the existing café to be demolished and the commencement made on the new restaurant structure. This would keep the current permission alive indefinitely, until either an alternative permission was issued or until the land ownership issues were resolved.

This is clearly not a situation which would be appropriate for the seafront at Budleigh – either from a tourism and economy point of view or the character and appearance of the area. It is therefore considered that the original extant permission can be accorded full weight in the determination of the current scheme."

37. At the hearing on 8 November 2013 I was told that all pre-commencement conditions have now been discharged and the 2010 planning permission has now been implemented by some construction work on site.
38. I am unable to accept Mr Beglan's submission. The advice I have set out above is accurate as a matter of fact and law. Notwithstanding the issue of ownership of the shelter the Interested Party has begun to implement the 2010 planning permission.
39. Neither do I think that Mr Beglan is assisted by reliance on an officer report and decision of July 2013 more than 13 months after the decision which he seeks to impugn which is dated 18 June 2012. In any event for the reasons given by Mr Whale in paragraph 43 of his skeleton argument they do not assist the Claimant. In ground 2 of the Statement of Facts and Grounds there is a third alleged failure to take a relevant matter into account which is that the 2010 Permission had been granted subject to a condition, condition 6, which prevented the development from being commenced until a schedule of demolition and construction works, which would have required an end date, had been submitted to and approved in writing by the Defendant. Mr Beglan did not make submissions on this but in any event it seems to me that it is defeated by the fact that a schedule of demolition and construction works was approved and the work to implement the 2010 planning permission has commenced.
40. Ground 3 relates to the taking into account of an immaterial consideration, namely but not exclusively (a) the Defendant's decision to grant planning permission under reference 08/2537/FUL was a precedent and (b) that the previous refusal in February 2012 under reference 11/2764/FUL should be set to one side. Mr Beglan puts these two arguments under the heading of misdirection. He deals with them in paragraph 30 of his skeleton argument and also in his oral submissions.
41. In my judgment this is simply an alternative way of putting the same arguments as in ground 2. I therefore do not address them separately.

Conclusion

42. For these reasons the claim is dismissed.