England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PLANNING COURT
In the matter of an application under s.288
of the Town & Country Planning Act 1990

		Royal Courts of Justice Strand, London, WC2A 2LL
		9 December 2015

REASONS FOR THE ORDER OF THE COURT MADE FOLLOWING THE HEARING ON 1 DECEMBER 2015

Mr Justice Supperstone :

1. This is an application pursuant to section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") challenging the decision of the Defendant's Inspector to grant outline planning permission to the Interested Party pursuant to section 78 of the 1990 Act in his letter dated 19 May 2015. The Inspector allowed the Interested Party's appeal against the refusal by Waverley Borough Council ("the Council") to grant outline planning permission for the erection of up to 3,189m² (GEA) of C3 (residential) floor space, associated access, engineering and landscape enhancement works ("the proposed development").
2. The site is the former Charles Hill Nursery, near Farnham in Surrey.
3. The Claimants live in properties that adjoin the appeal site on its eastern side. The Interested Party is a developer and the successful appellant for planning permission.
4. The Claimants challenge the decision of the Inspector on three grounds: first, that the Inspector wrongly elided 'openness' for the purposes of the National Planning Policy Framework ("NPPF"), Part 9 (Protecting Green Belt Land), with the concept of "visibility". Second, that the Inspector's determination that the scheme does not constitute "major development" for the purposes of NPPF 116 is irrational. Third, that the Inspector failed to give proper and adequate reasons for dismissing the Council's case that the scheme represents "major development".
5. The Defendant and the Interested Party contend that the Claimants lack standing to bring this application. Further, they contend that the grounds of challenge are without merit.
6. The first issue therefore to be decided is whether the Claimants have standing to bring this application.
7. At the conclusion of the hearing on 1 December 2015 I dismissed the application on the basis that the Claimants do not have standing to bring this application. I gave brief reasons for my decision and stated that I would give fuller reasons in writing, which I now do.
8. The factual background to this application relevant to the issue of the Claimants' standing is not materially in dispute:

i) By an application dated 5 July 2013 the Interested Party applied to the Council for outline planning permission for the proposed development.

ii) On 15 September 2013 Ms Janet Long of Planit Consulting wrote to the Council on behalf of the Second Claimant in opposition to the planning application.

iii) On 31 January 2014 the Council refused the application. The Interested Party appealed under s.78 of the 1990 Act. The appeal proceeded by way of the inquiry procedure.

iv) Neither claimant wrote to the Inspector who determined the appeal nor made any representations at the inquiry, which opened on 24 February 2015, to object to the appeal proposals.

v) On 19 May 2015 the Inspector issued his appeal decision allowing the appeal and granting outline planning permission.

vi) On 30 June 2015 the Claimants issued their s.288 application. The Council does not seek to challenge the validity of the Inspector's decision.

9. By virtue of s.288(1)(b) of the 1990 Act "any person [who] is aggrieved" by a decision on appeal under s.78 of the 1990 Act may make a s.288 application.
10. It is common ground that the leading authority on the meaning of the term "person aggrieved" under s.288(1)(b) is the decision of the Supreme Court in Walton v Scottish Ministers [2013] PTSR 51.
11. Mr William Webster, for the Claimants, submits that as owners of properties adjoining the appeal site the Claimants have a sufficient personal interest in the outcome of the appeal. Accordingly they should, he submits, both be treated as "aggrieved persons" within the meaning of s.288(1)(b). (Title to Charles Hill Court, registered in September 2014, is vested in the sole name of the First Claimant's wife but no point is taken by the Defendant or the Interested Party in that regard).
12. Mr Stephen Whale, for the Secretary of State, supported by Mr Christopher Katkowski QC, for the Interested Party, contend that the Claimants have no standing to bring this application and accordingly it should be dismissed on this basis alone.
13. In Walton Lord Reed JSC, delivering the first judgment, stated at paragraphs 86 and 87, so far as is material, as follows:

"86. It is apparent from these authorities that persons will ordinarily be regarded as aggrieved if they made objections or representations as part of the procedure which preceded the decision challenged, and their complaint is that the decision was not properly made. …

87. The authorities also demonstrate that there are circumstances in which a person who has not participated in the process may none the less be 'aggrieved': where for example an inadequate description of the development in the application and advertisement could have misled him so that he did not object or take part in the inquiry… Ordinarily, however, it will be relevant to consider whether the applicant stated his objection at the appropriate stage of the statutory procedure, since that procedure is designed to allow objections to be made and a decision then to be reached within a reasonable time, as intended by Parliament."

14. It is not in dispute that the procedure which preceded the Inspector's decision being challenged was the appeal procedure. In Walton the court was concerned with the procedures laid down in the Roads (Scotland) Act 1984 ("the 1984 Act"), but it is not suggested that the meaning of "persons aggrieved" is any different under the 1990 Act. Further Mr Webster does not contend that circumstances akin to the example given in paragraph 87 of Lord Reed's judgment apply in the present case.
15. In Walton the applicant had made representations to the Ministers in accordance with the procedures laid down in the 1984 Act. He took part in the local inquiry held under the Act, and the circumstances described by Lord Reed in paragraph 88 of his judgment led him to the conclusion that the applicant was a person aggrieved within the meaning of the legislation.
16. In support of his submission that the Claimants are "aggrieved persons", even though they did not actively participate in the appeal process, Mr Webster relies on other passages in the judgment of Lord Reed (paras 92 and 94-95), and passages in the judgments of Lord Carnwath (para 103) and Lord Hope (paras 151-154).
17. Lord Reed at paragraph 92 said:

"… a distinction must be drawn between the mere busybody and the person affected by or having a reasonable concern in the matter to which the application relates. The words 'directly affected', upon which the Extra Division focused, were intended to enable the court to draw that distinction. A busybody is someone who interferes in something with which he has no legitimate concern. The circumstances which justify the conclusion that a person is affected by the matter to which an application relates, or has a reasonable concern in it, or is on the other hand interfering in a matter with which he has no legitimate concern, will plainly differ from one case to another, depending upon the particular context and the grounds of the application." (See also paras 94-95).

18. Mr Webster submits that the Claimants are plainly not mere busybodies. The First Claimant and his wife only became aware of the disputed planning position after they acquired their current property, by which time an appeal against the Council's decision had been lodged. The First Claimant then contacted Mr Barry Lomax at the Council and Mr Tubb of the Interested Party in order to voice his objections about the proposed development. Subsequently on 6 January 2015 he sent an e-mail to Mr Lomax in which he complained about what he considered to be inappropriate development in the Green Belt which it seemed to him would lead to an increase in traffic and noise and that any permission for development might also set an unwelcome precedent (see his witness statement, para 7). He also discussed "the disputed planning position" with Ms Janet Long. At paragraph 8 of his witness statement the First Claimant states:

"… In broad terms, the view was taken that WBC [the Council] had a strong case on the appeal and that it would be sensible to leave it to them to resist it. It was felt that there was really nothing more that either 2C [the Second Claimant] or I could usefully add to the debate in which, as far as I was concerned, my objection was rooted principally in that I consider it wrong that there should be a development of this nature within what is Green Belt and an Area of Outstanding Natural Beauty. I accept, of course, that it is not as if I would be directly affected by the proposed development in the sense that it overlooked my property although clearly there would be more in the way of noise and traffic movements in the area. 2C and I therefore decided not to attend the public inquiry in order to speak out against the development proposal or to instruct a separate legal team to represent out interests as it seemed to both of us to be plain that all the relevant points on planning policy would be covered by WBC (as it turned out I was travelling abroad anyway when the inquiry occurred)."

19. In fact the First Claimant's e-mail of 6 January 2015 relates to a subsequent planning application for three homes on the site (Planning application ref. WA/2014/2156), not to the planning appeal which related to application WA/2013/1311. At the inquiry Mr Katkowski did submit to the Inspector that if he was concerned about five dwellings the number could be reduced to four. However the Inspector at DL44 stated that he did not need to consider a reduction in the number of dwellings from five to four, since such a reduction would not be critical to the impact of the scheme on the openness of the Green Belt in relation to the existing development.
20. Mr Whale points out that Mr Lomax replied to the First Claimant's e-mail of 6 January 2015 asking him to confirm that he was content for the e-mail to be published on the Council's website "as a representation to the above mentioned planning application" (WA/2014/2156), and that no reply from the First Claimant appears to have been received.
21. Nevertheless Mr Webster contends that the First Claiamnt's e-mail of 6 January 2015 should have been forwarded to the Planning Inspector as he had made clear that he was opposing any development on neighbouring land.
22. The Second Claimant in his witness statement (at para 3) states that in contrast to the First Claimant's property, parts of the proposed development would be visible from his property. At paragraph 5 he states:

"I agree with 1C [the first Claimant] when he says that neither he nor I felt that any useful purpose would be served by participating directly in the public inquiry when Waverley Borough Council were dealing with the matter with obvious vigour and all the relevant points against the planning proposal were obviously going to be made by their inquiry team."

23. However Mr Webster confirmed that there was no evidence that the Council was acting on behalf of either claimant at the inquiry.
24. In my view Lord Reed's judgment at paragraph 92 on which Mr Webster relies (see para 14 above) does not assist the Claimants. It is in the section of the judgment of Lord Reed at paragraphs 89-96 which is specifically concerned, as the heading to the section makes clear, with "Standing to invoke the supervisory jurisdiction" of the court. Lord Reed said at paragraph 89 that it may be helpful to consider that matter briefly in view of the Extra Division's observation that Mr Walton would lack standing, even if the statutory test were the same as would apply to an application to the supervisory jurisdiction under the common law. Paragraph 92 does not, in my view, affect in any way the statutory test for "persons aggrieved" set out at paragraphs 86 and 87 of his judgment.
25. The next passage on which Mr Webster relies is in Lord Carnwath's judgment at paragraph 103 where Lord Carnwath states:

"The courts may properly accept as 'aggrieved', or as having a 'sufficient interest' those who, though not themselves directly affected, are legitimately concerned about damage to wider public interests, such as the protection of the environment."

However that passage again does not, in my view, assist the Claimants. In paragraph 103 Lord Carnwath is, as he says, adding a few words on the issue of discretion, which in practice may be closely linked with that of standing. Moreover at paragraph 102 Lord Carnwath said that on standing he had nothing to add to Lord Reed's discussion on the expression "person aggrieved", which confirms, as he understood it, that Scottish practice on these matters is, or should be, in line with that south of the border.

26. Finally, Mr Webster referred to Lord Hope's judgment at paragraphs 151-154 in support of his submission that the test for standing is wider than Lord Reed's judgment at paragraph 86 suggests. However in my view the judgment of Lord Hope also does not assist the Claimants. In the paragraphs to which Mr Webster refers Lord Hope is considering the question of standing in the context of environmental law (at para 151), and expresses the view that "there has to be some room for individuals who are sufficiently concerned, and sufficiently well informed" to act in a representative capacity on behalf of, for example, an osprey who has no means of challenging a proposed development on its own behalf (paras 152-153). As for the position of Mr Walton, Lord Hope says that he agrees with Lord Reed's conclusion, in paragraph 88 (see para 13 above), that in the circumstances Mr Walton has demonstrated a genuine concern about the legality of a development which is bound to have a significant impact on the environment, and that he is entitled to be treated as a person aggrieved for the purpose of the statute (para 154).
27. Lord Kerr and Lord Dyson agree with the judgments of Lord Hope, Lord Reed and Lord Carnwath (para 157).
28. I consider that the words "person aggrieved" in section 288(1)(b) of the 1990 Act must be interpreted in accordance with the judgment of Lord Hope in Walton at paragraphs 86-87, with which all their Lordships were in agreement. Neither claimant made objections or representations during the appeal procedure. Accordingly the Claimants have no standing to bring the present application, which must be dismissed.