England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Cardiff Civil Justice Centre, 2 Park Street Cardiff CF10 1ET
		Tuesday, 24 July 2012

Mr Justice Beatson:

1. This is an application for the judicial review of the defendant's development control committee's decision made on 14 March 2012 to grant a certificate of lawfulness pursuant to section 192 of the Town and Country Planning Act 1990 ("the 1990 Act"). The certificate concerned land to the rear of 17 Vyvyan Terrace, Clifton, in Bristol, and within the Clifton Conservation Area and a grade 2 listed building. It confirmed that works carried out on the land constituted "material operations" within section 56(4) of the 1990 Act and that the development permitted by planning permission 08/04998/F and listed building consent 10/01519/LA had begun.
2. The proposed development was the construction of a two-storey building on a site which included a garage within the curtilage of number 17 and which was to be demolished.
3. These proceedings were launched on 26 April this year. The decision of the committee was originally challenged on three grounds: first, that the committee made an error of law in relation to whether the works were material to the first of the permissions; secondly, that its decision was an abuse of discretion due to manifest unreasonableness. It was submitted that the evidence before the committee solely concerned works outside the building area, and in any event was superficial so that no reasonable development control committee and/or council could have reached such a decision. Thirdly, it was argued that the decision of the development control committee was procedurally unfair as a result of an appearance of bias on the part of its Chairman.
4. One June 2012, HHJ Vosper QC gave permission in respect of the second ground, but refused permission in respect of the other two grounds. The claimants did not renew their application in respect of the other two grounds. By the time of the hearing yesterday, the garage had been demolished and the construction of the new building, possibly under a different planning permission, was under way. I was informed that it was three-quarters completed. The claimant was originally named as the Vyvyan Terrace Residents Campaign Group, an unincorporated association. HHJ Vosper also ordered that the claim be continued by Miss Catherine Napier Coates, who chairs the group on her own behalf and on behalf of the group as an unincorporated association.
5. On 18 July I heard applications by the claimant for a protective costs order and seeking permission for Mr Nigel Henry, a student at the University of the West of England who has had some advocacy experience in a university clinic context, to be permitted to make representations on behalf of the group on that occasion and at the substantive hearing. I refused the application for a protective costs order and gave my reasons for so doing at the conclusion of the hearing on 18 July. Although it was said that without such an order Ms Coates would not be able to proceed with the claim, they did in fact do so. As to the second application, I granted it after ascertaining what Mr Henry's experience was and eliciting his understanding of the duties of an advocate to the court. I did so in the light of Ms Coates' personal circumstances and in particular her health.
6. The evidence before me on behalf of the claimant consists of a Statement of Facts attached to the claim form signed on 26 April with a Statement of Truth by Ms Coates, and a statement by her dated 21 June 2012. The bundle also contains three photographs of the site, which are described as "Catherine Coates exhibits CC1, CC2 and CC3", dated between 2 February and 10 April 2012, but these are not in fact exhibited to a statement of Ms Coates.
7. The photographs were said to show that a manhole cover, which, as will be seen, is a material part of the application for the certificate, is not fixed to the ground and can be moved, and to illustrate that no works other than those described in the application had been done on the site. These photographs, it was said, unlike those submitted with the application, were not close-ups but showed the context.
8. The evidence before me on behalf of the defendant consists of the statement of Ms Rachel Johnson dated 11 May 2012. The defendant did not file further evidence after permission was granted. It made written submissions in respect of the application for a protective costs order and the substantive case for which permission had been granted. The latter was a three-page document entitled "Defendant response to assist the court". It, however, did not appear at the hearings on 18 and 23 July. It stated in its defendant's response that this was because it could not justify the use of taxpayers', ratepayers' and council tax payers' funds in this case where there were other extant permissions in existence in relation to the demolition of this garage and the re-development of the site, and the listed building consent in 10/01519/LA had been fully implemented.
9. Paragraph 13 of Ms Johnson's statement refers to the photographs described as "Exhibits CC1-CC3". She stated that the Council had only received copies of these on 10 May: that is, after proceedings were launched and when her witness statement was being prepared, and that it had not had an opportunity before the statement was finalised to investigate. She also stated that it is regrettable that the claimant did not take the opportunity to provide this information to the Council during the pre-action protocol process.
10. Although the photographs are not properly in evidence, I nevertheless considered them and what was said about them de bene esse. The starting point is section 192 of the Town and Country Planning Act, which deals with Certificates of Lawfulness of Proposed Use or Development. The material parts of this provide:

"(1) If any person wishes to ascertain whether—

(a) any proposed use of buildings or other land; or

(b) any operations proposed to be carried out in, on, over or under land

would be lawful, he may make an application for the purpose to the local planning authority specifying the land and describing the use or operations in question.

(2) If, on an application under this section, the local planning authority are provided with information satisfying them that the use or operations described in the application would be lawful if instituted or begun at the time of the application, they shall issue a certificate to that effect; and in any other case they shall refuse the application.

(3) A certificate under this section shall—

...

(c) specify the date of the application for the certificate.

(4) The lawfulness of any use or operations for which a certificate is in force under this section shall be conclusively presumed unless there is a material change, before the use is instituted or the operations are begun, in any of the matters relevant to determining such lawfulness."

11. The crucial issue in this case is whether the council was entitled to conclude through its development control committee that the development had begun before the expiry of the planning permission. Accordingly, section 56 of the 1990 Act, which deals with the time when the development began, is relevant. This provides:

"(1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated—

(a) if the development consists of the carrying out of operations, at the time when those operations are begun;

(b) if the development consists of a change in use, at the time when the new use is instituted;

(c) if the development consists both of the carrying out of operations and of a change in use, at the earlier of the times mentioned in paragraphs (a) and (b).

(2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out.

(3) The provisions referred to in subsection (2) are sections 85(2), 86(6), 87(4), 91, 92 and 94.

(4) In subsection (2) 'material operation' means—

(a) any work of construction in the course of the erection of a building;

(aa) any work of demolition of a building;

(b) the digging of a trench which is to contain the foundations, or part of the foundations, of a building;

(c) the laying of any underground main or pipe to the foundations, or part of the foundations, of a building or to any such trench as is mentioned in paragraph (b);

(d) any operation in the course of laying out or constructing a road or part of a road;

(e) any change in the use of any land which constitutes material development."

12. The background facts are largely agreed and can be summarised as follows. Vyvyan Terrace is a series of terraced houses with a mews at their rear. As I have stated, it is grade 2 listed. On 3 March 2009 planning permission reference 08/04998/F was granted for the construction of a two-storey building on the land to the rear of No. 17 Vyvyan Terrace.
13. This permission was subject to a number of conditions. The conditions of principal relevance to these proceedings are, first, SC1 for planning permission: "The development ... shall begin before the expiration of three years from the date of this permission": that is, the permission would expire on 3 March 2012.
14. SC57, the second condition, concerned the use of the garage and car parking spaces. This provided:

"Notwithstanding the provisions of the Town and Country (General Permitted Development) Order 1995 ... the garage/car parking space(s) hereby permitted shall be retained as such and shall not be used for any purpose other than the garaging of the private motor vehicles associated with the residential occupation of the property and ancillary domestic storage without the prior written permission of the local planning authority."

15. Other conditions concerned the submission of samples (condition 3) and sample panels (condition 4), and requiring further details as to, inter alia, (see condition 5(a)) "the boundary treatment between the development and 17 Vyvyan Terrace". Conditions 5(b) to (e) dealt with further details of windows, doors and garage doors, and required large-scale details of the junctions with the adjacent buildings in the plan showing the join of the materials. The last of these was to ensure that the external appearance of the building was satisfactory and the character and appearance of the Clifton Conservation Area would not be harmed.
16. In a letter dated 23 February 2010, the council discharged conditions 3 and 5, the latter in respect of condition 5 on the basis of an amended plan (reference T001B). Plan T001B, unlike the plan with the original application, did not show proposed development beyond the red line area on the plans for the original applications: ie outside the site boundary in the plans submitted with the original application. The letter also stated that while there was no need for condition 6 concerning cedar screening to be formally discharged, it was a requirement that the development be carried out in accordance with it, and that condition 4 relating to sample panels of external materials remained outstanding.
17. An associated listed building consent (reference 10/01519/LA) dated 16 June 2010, to which I have referred, gave listed building consent for the demolition to the rear of and within the curtilage of number 17. The conditions for this included condition 1:

"The works hereby permitted shall begin before the expiration of three years from the date of this consent."

That is, the permission would expire on 16 June 2013.

18. A letter dated 20 December from the present site owner, Mr Rutley's planning consultant, gives the expiry date of 16 July 2012, but this would seem to be an error.
19. Condition 2 concerned a contract for development. It provided:

"Works for the demolition of the building(s) or part of the building forming part of the development hereby permitted shall not be commenced before a valid contract for the carrying out and completion of works of re-development of the site for which planning permission was granted on 3 March 2009 has been entered into, and evidence of that contract submitted to and approved in writing by the Local Planning Authority."

The reason for this condition was stated to be to ensure that demolition was followed by immediate rebuild to maintain the character and appearance of the conservation area.

20. On 13 December 2010 the land to the rear of number 17 was sold. On 9 February 2011 it was sold to its present owner, Mr Rutley, the interested party in these proceedings, who has however not taken any part in them.
21. On a date in 2011 that is not recorded in the papers before me, Mr Rutley applied for permission to demolish the garage. Planning officers visited the site in May or early June and took photographs (see Rachel Johnson's witness statement, paragraph 10). These photographs show that there was no boundary fence on the site at that time. The defendant refused this application on 15 June 2011, but an appeal by Mr Rutley against that decision was allowed by an Inspector on 3 January 2012, and planning permission was granted.
22. Before 3 January 2012, four events occurred. The first was that at some stage, (according to Aspect 360, Mr Rutley's planning consultants, it was on 28 November 2011) the following works were carried out: the excavation of a trench, laying of foundations and the erection of a boundary fence, the excavation of a trench, laying of drains adjacent to the fence, construction of first manhole for dual drainage system, connection of drains to the first manhole. Aspect 360's letter stated that "evidence of these works is provided in the form of photographs provided in appendix 1". Appendix 1 contained two photographs, one showing the boundary fence erected along the rear boundary with a trench in the foreground, which is stated to be provided for drainage purposes. The second photograph states that it shows the boundary fence erected along the rear boundary with the trench and manhole cover in the foreground, and that they contain surface water drainage provided in association with the proposed development.
23. The second event was that, on 5 December 2011, there was a further site visit by planning officers (see Rachel Johnson's witness statement, paragraph 14). It is stated that during that visit the officers saw a boundary fence, that a drainage ditch had been prepared and that a manhole cover had been put in place for surface water drainage. The officers took photographs of the fence, ditch and manhole cover.
24. The third event is that, in a letter dated 15 December 2011, the council discharged condition 4, the sample panel condition. It also confirmed that a different brick, which the new owner wished to use rather than the bricks which had led to condition 3 being discharged in February 2010, was equally acceptable.
25. The fourth event was that, in an application dated 20 December 2011, Aspect 360 applied on Mr Rutley's behalf for a certificate of lawfulness. The material parts of this application stated:

"Planning permission 08/04998/F has been granted for the development which has commenced in the form of laying of foundations and erection of boundary fence; excavation of trench, laying of drains adjacent to the fence; construction of first manhole for dual drainage system; and connection of drains to the first manhole."

26. The supporting documentary evidence accompanying the application is stated to be "photographs showing the works in situ". The application was accompanied by Aspect 360's covering letter to which I have referred. That letter stated that the works had been witnessed by Ms Sangway and Mr Haywood of Bristol City Council, who appear to be, and probably are, the planning officers who visited the site on 5 December, but this is not clearly stated in the material before me.
27. In preparation for the meeting of the Council's Development Committee on 14 March 2012, the relevant officers prepared a report. The material parts of this report are:

"The Legal Team have been consulted and have advised that the works carried out would constitute implementation of planning application 08/04998/F. However they would not comprise implementation of listed building consent 10/01519/LA as this was granted for the demolition of the garage only and demolition has not commenced. On this basis, the officer recommendation is that the Certificate of Lawfulness for the proposed development be granted and issued for planning permission 08/04998/F only."

28. In the relevant planning history section of the report, the officers stated that the conditions to which listed building consent had been granted on 16 June 2010 had all been discharged and that the applicants were seeking to demonstrate that the above application had been implemented.
29. The report referred to previous levels of objection to the scheme. There had apparently been a total of 76 letters of objection. The grounds of objection included that the fence had been built 1.4 metres further down the garden than permitted and was not the approved fencing, that the work that had been carried out was in an area that was not included in the permission, that no foundations had been dug, that listed building consent was required, and that the work was in breach of planning consents.
30. The notes to these items state in respect of listed building consent that that matter "is being considered separately and does not form part of the consideration of this certificate application" and, in respect of the objection that the work was in breach of planning consents, that "The relevant planning conditions have been discharged in relation to 08/04998/F and 10/01519/LA".
31. The report referred to the evidence submitted by Aspect 360 with the application and then stated in the section "Would the works carried out constitute commencement of development of the site?"

"The Legal Team has advised that the works carried out would constitute 'material operations' as set out in 'The Act' and therefore constitute commencement of development. The works completed do not necessarily need to be indicated on the approved plans (eg drainage trenches) as long as they would be concluded to be 'necessary' to the approved development and completed with a readiness and intent to develop the approved scheme.

The proposed fence and drainage trenches have been carried out outside the red line area indicated on the Site Location Plans submitted with applications 08/04998/F and 10/01519/LA. This is because the 08/04998/F permission included only the proposed dwelling itself within the red line and not the proposed small rear yard and boundary (approximately 3m deep). The site has since been sold off including the area for the house and the rear yard, and the red line plan submitted for the recently allowed appeal scheme (11/01042/F) now includes the whole area and the works carried out on site are within this area.

The approved plans for application 08/04998/F and the subsequent approved plans submitted for the discharge of conditions relating to 08/04998/F as well as the subsequent appeal plans (11/01042/F) all show a boundary/fence in broadly the same position as that constructed on site (with some minor differences).

... All the plans must be read together in sensibly construing the permission rather than the red line plan alone ...

Listed building consent 10/01519/LA grants consent for the demolition of the existing garage only. As no works of demolition have commenced, the works carried out would not constitute implementation of permission 10/01519/LA."

32. In paragraph 15 of her statement, Rachel Johnson stated:

"The report to Committee necessarily needs to be sent to members in advance of the meeting. The Committee were advised verbally by the officer when the agenda item came up that there was an error in the report and their recommendation was that the application for [the certificate of lawfulness of proposed use or development] should be granted in respect of both application 08/04998 and 10/1519. This is recorded in the minutes of the meeting."

33. Turning to the meeting, the minutes state that the Service Director of Planning and Sustainable Development Representative gave a detailed presentation on the application, that all pre-commencement conditions relating to 08/04998/F and 10/01519/LA had been discharged and that the application before the Committee sought to demonstrate that work related to those applications had been implemented:

"The Service Director Planning and Sustainable Development representative highlighted to members that an amendment had been made to the officer recommendation so that the Certificate should also be issued in relation to the listed building permission 10/01519/LA."

That is the minute of the recording of the correction referred to in Ms Johnson's statement.

34. I interpose in this summary of the Committee's decision that, in her more recent statement, Ms Coates stated at paragraph 11:

"I attended the Committee meeting on 14th March 2012, with several VTGC colleagues. My recollection is that before the matter of 17 Vyvyan Terrace was considered by the Committee, it was emphatically stated by the chairman Cllr Woodman that the Listed Building Consent reference 10/01519/LA was not part of the application, and therefore any submissions which included the issue of demolition would be limited to 1 minute. This was not reflected in the minutes of the meeting, other than the mention of statements 9-12 & 14 being 'outside the remit of the application'."

35. Returning to the minutes of the meeting, the following are the material sections:

"Members also noted that a recent planning application (11/01042/F) for construction of a new dwelling with changes to parking and elevation design had been refused but had been subsequently granted on appeal on 3 January 2012 however the Committee was informed that this application was not directly relevant to the current application. The Committee were informed that it was important to note that the matter of a listed building consent in respect of application 11/01042/F would have been considered separately and did not form part of the consideration for the certificate of lawfulness application."

36. After recording the allegation of bias and the Committee's treatment of it, the minutes continue:

"... after considerable debate, the Service Director Planning and Sustainable Development representative, having regard to all the comments raised during the public forum session, legal comment and comments made by members of the Committee, reiterated that the evidence submitted under the certificate had demonstrated that the work carried out had comprised –

excavation of a trench, completion of foundations for a fence, an erection of a boundary fence;

excavation of a trench and laying of drains adjacent to the fence;

construction of first manhole for dual drainage system and connection of drains to manhole;

The Council's legal representative advised that the works carried out were likely to constitute 'material operations' as set out in Section 56(2) of the Town and Country Planning Act 1990 and consequently would be likely to constitute commencement of development implementing the permission. The works completed did not necessarily need to be within the red line site of the application provided they were indicated on the approved plans and were considered to be relevant to the approved development.

The Council's legal representative advised that the works listed above would also comprise implementation of the listed building consent 10/01519/LA particularly having regard to the discharge of all the relevant conditions in the listed building consent which had been complied with in so far as the developer was able."

A move to defer consideration of the application pending further and independent legal opinion about what constituted commencement of development was rejected.

37. The submissions by the claimant are that the decision to grant the certificate of lawfulness is Wednesbury unreasonable because neither of the application form nor the accompanying letter provided any details or evidence that any work was commenced on the demolition of the listed garage at the time of the application.
38. The planning officer's report stated that demolition had not been commenced and should not be certified as having done so. The Committee Chairman, having stated at the beginning of the meeting that he did not want to hear representations regarding the listed building consent, curtailed speakers who intended to address the subject, and no evidence was presented or heard as to whether or not demolition of the garage had commenced in accordance with listed building consent 10/01519/LA.
39. Reliance was placed on the statement in the officer's report that the works carried out would not comprise implementation of a listed building consent, as that was granted for the demolition of the garage only "and demolition has not commenced".
40. There are two other limbs to the claimant's arguments. The first was based on the definition of "material operation" in section 56 of the 1990 Act. It was submitted that it was manifestly unreasonable to find that the evidence submitted on behalf of the developer constituted material development because it did not consist of "any work of construction in the course of the erection of the building", "the digging of a trench which is to contain the foundations or part of the foundations of a building" or "the laying of any underground main or pipe to the foundations".
41. It was argued that the manhole cover was not fixed, suggesting there was no manhole to be covered, and that the committee report did not state whether any site inspection was made to verify the information in the application, and that no evidence was given to the committee itself.
42. In summary, the submission was that none of the evidence furnished with the application was evidence of the commencement of demolition of the building. The aim of the application for a Certificate of Lawfulness, it was argued, was to preserve the planning permission for the building given on 3 March 2009, which would otherwise expire on 3 March 2012.
43. At the time of the application for the certificate, the developer's appeal against the refusal of permission to demolish the garden had not yet been allowed. Unless the planning permission was preserved, it and the listed building consent would fall together. The claimant's case is that the listed building consent was inextricably linked with planning permission 08/04998/F by way of condition 2, which had required that demolition could not commence until a valid contract for carrying out and completion of the works relating to that particular permission had been entered into. Since the works, including the fence, were not within the footprint of development area identified in the application which led to the planning permission and the listed building consent, they could not constitute a material operation for the purpose of that planning permission.
44. Notwithstanding the way Mr Henry made his submissions in support of the claimant's case, I have concluded that this application must be rejected. First, my summary of the facts shows that while the fence was outside the red line site plan submitted in application 08/04998/F, the officers were aware of that and had approved the revision to the plans in drawing T001B, which led to the discharge of condition 5(a) of the permission. The task for the defendant and for the officers in preparing an advice to it was to consider whether, looking at the development as a whole and reaching a judgment as a matter of fact in the light of all the factors (that is, the red line site, the discharge of the conditions and the works which had taken place) development within the meaning of section 56 of the 1990 Act had taken place.
45. As was stated by Eveleigh LJ in Malvern Hills DC v Secretary of State for the Environment [1982] 1 EGLR 175 at 178: "Very little needs to be done to satisfy the section" (see also Watkins LJ at 179). In that case what was done was pegging a substantial part of the line of a road. See also Riordan Communications Limited v South Bucks DC [2000] 1 PLR 45, where it was stated by the deputy judge that the correct approach is an objective approach, considering first "whether the work done was in accordance with the relevant planning permission", and second "whether it was material in the sense of not being de minimis".
46. It is also clear (see by analogy R v Flintshire Council ex parte Somerfield Stores [1998] P&CR 336) per Carnwath J, that a relatively broad approach to the question should be taken.
47. In the present case, no irrelevant factor had been taken into account, and it was reasonable for the committee, in the light of the evidence considered by its officers and the contents of their report as corrected, to consider a discharge of conditions in respect of both the permissions, as the committee did.
48. It is also of significance that there is an existing and valid planning permission for the demolition of the garage, and that other applications for listed building consent (Council references 11/01777 and 11/01789) had been granted on 20 July 2011 and are extant today.
49. It was argued that, notwithstanding those permissions, the present application is not pointless because the planning permission granted on 3 January 2012 does not in itself enable reliance to be placed on the listed building consent 10/01519/LA, dated 16 June 2010.
50. While the law reports contain many examples of success in the context of planning law on the basis of highly technical arguments, the submission on behalf of the claimant that what was needed was physical demolition of the garage, or the beginning of it, does not reflect the fact that a Certificate of Lawfulness can be sought in respect of "operations proposed to be carried out" (see section 192(1)(b)) and that, in the light of the authorities to which I have referred, it was not Wednesbury unreasonable to conclude on the basis of such work as had been done that development had begun. I conclude by reiterating the words of Eveleigh LJ that very little needs to be done to satisfy the section.
51. For those reasons this application is refused.
52. I will just add that the Council has in its summary grounds and in its resistance to the application for a protective costs order sought its costs. It, however, has not participated in this hearing beyond participation in writing, to which I referred. I have considered all the circumstances of the case and, while the Council in principle is entitled to the costs of preparing its Acknowledgment of Service and summary grounds, the amount claimed appeared to me last Wednesday and still appears to me to be excessive and therefore, subject to anything which the claimants wish to say today, I would say that the Council is entitled to the costs of preparing the Acknowledgment of Service, but those costs are to be assessed in the sum of £1,000, a significant reduction.

MR JUSTICE BEATSON: Is there anything you want to say in relation to costs? I mean, do you need some time to pay? You told me you had £1,600 in the kitty, but if you want, shall I say to be paid within 14 days?

MR HENRY: Yes, please.

MR JUSTICE BEATSON: Thank you very much. I am sorry not to be able to help you.