England and Wales High Court (Administrative Court) Decisions

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

		The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		18th January 2016

1. MR JUSTICE OUSELEY: This is an appeal under section 288 of the Town and Country Planning Act 1990, against the decision of an Inspector, dated 11th September 2015, granting outline permission for residential development for 41 houses plus associated works on land at Edgerton, Huddersfield. The application had been made in October 2014 but the local authority had failed to determine it. The developer, Prospect Estates Ltd, appealed against the failure to determine the application.
2. After the appeal had been lodged and before the informal hearing held into the appeal, are the Kirklees Metropolitan Borough Council as planning authority had resolved that it would have refused planning permission on a variety of grounds. However, following the provision by the developer of further information, together with negotiations over a contribution to affordable housing, the local authority found itself satisfied that planning permission should be granted and adopted that stance at the informal hearing.
3. The opposition to the principle of development and to much of the detail therefore came from the local residents with the Clayton Fields Action Group, chaired by the claimant, Mr Adamson, to the fore. Many local residents were in attendance and the Inspector would plainly have been well aware of the extensive opposition to the proposal.
4. Indeed, the claimant (as defendant, appellant and finally respondent,) had been involved in litigation that went all the way to the Supreme Court, culminating in 2014 in the quashing of the registration of Clayton Fields as a village green - see Adamson & Ors v Paddico (267) Ltd [2014] UKSC 7. The quashing of the registration in February 2014 paved the way for the application which led to the appeal.
5. The Decision Letter describes 10 main issues, to a number of which the challenge had been directed. The terms of the challenge can be found in three documents. First, are the grounds of challenge which are short. They were preceded by a longer pre-action protocol letter and shortly before the hearing of the appeal were supplemented and added to by a supplementary bundle and submissions on behalf of the claimant.
6. Although some of the points in the supplementary bundle go somewhat beyond the scope of the grounds of claim it has been possible for them to be considered in the course of this hearing without prejudice to the position of the defendant, Secretary of State, and developer. The local authority is not represented.
7. In the supplemental submissions there were six points raised with some subpoints and I propose now to turn to the individual points therein raised. The first concerns affordable housing. That issue arises in this way. The developer had initially, and for some time, not wanted to make any contribution to affordable housing, contending that on its viability appraisal and applying the relevant approach no such sum was due. This was an issue on which it disagreed with the local authority and was one which lay behind the position adopted by the local authority initially.
8. The developer produced, through independent consultants Savills, its viability appraisal which was made available in the usual way and probably on the usual confidential terms to officers of Kirklees. The Council instructed its own external expert to see whether the viability appraisal was right and justified the conclusion that no sum was due. The experts and their clients initially disagreed but following discussions the developer accepted that a sum of just under £250,000 should be made available as an affordable housing contribution together with £100,000 towards other items of public planning benefit.
9. At the inquiry an issue was raised relating to the costs that had been included on the costs side of bringing the site forward for development. These related to the costs incurred in the village green litigation. Mr Adamson was well aware that a sum of money had been paid by the Legal Aid Fund to the developer, albeit in a different corporate name, in relation to the costs of the proceedings in the Court of Appeal and Supreme Court. The developer and Legal Aid Fund had agreed the Legal Aid Fund's liability at £220,000 for the Court of Appeal and Supreme Court proceedings.
10. The issue raised at the inquiry was whether that sum had been taken into account by way of reducing the costs of the development or whether the developer had taken the £200,000 but was still asserting that £200,000 was part of the costs of development; in other words double counting the costs.
11. The Council's expert deferred that question to the developer's director who answered clearly that there was no double counting; the £200,000 had been deducted from the costs put into the costs' side of the viability analysis. There the matter was left. Although Mr Adamson has sought before me to say that further questions were asked, I have declined his implicit application to be permitted to call evidence because Mr Cook, in his witness statement of 19th November 2015, had made it perfectly clear that that had been the end of the questions and no further issue in relation to that had been raised by Mr Cook.
12. Accordingly, the point raised in relation to costs at the informal hearing had been disposed of and the Inspector was entitled, on that basis, to come to the conclusions on the viability analysis and hence on the affordable housing contribution which he did. He deals with this issue in paragraph 36 to 38 of his Decision Letter:

"At the Hearing interested parties queried the above average development costs and land values cited by the appellant's viability appraisal and pointed to the possible manipulation of statistical data. However, the appraisal has been independently assessed on behalf of the Council by a qualified surveyor. This confirms that allowances for dealing with surface water and other major infrastructure works such as retaining walls are all necessary and represent substantial abnormal costs. The surveyor also confirms that the appellant's legal expenses associated with village green applications should be included because the costs were related to bringing the site forward for housing.

37. In terms of land value it was put to me that the site was only purchased for a nominal sum, and that this should be used as the starting point for the assessment. Nevertheless, the fee paid reflected its village green status at that time, which has since been removed. I am also mindful that the site is currently allocated for up to 55 houses in the Kirklees UDP. It is therefore reasonable for this to be reflected in the existing use value. An allowance for developer's profit has also been included and reflects the agreed approach between the parties.

38. When factoring these figures into account the Council's surveyor advises that the scheme would only be able to stand a financial contribution towards affordable housing of roughly £248,555. Based on the evidence provided and oral representations presented at the Hearing I have nothing before me to suggest otherwise. Although the contribution would be less than the total required by the Council's Supplementary Planning Document 2: Affordable Housing (SPD2), it would provide competitive returns to a willing landowner and willing developer to enable the development to be deliverable."

13. The Inspector therefore was satisfied, on the evidence before him, that the viability appraisals produced by the developer, assessed and, to some extent, disagreed with by the Council's surveyor, had produced an agreed figure for affordable housing contribution which was acceptable. In my judgment, on the material before the Inspector, which is what matters, the Inspector was fully entitled to come to that conclusion and had a satisfactory answer to the particular issue which had been raised.
14. Mr Adamson says that whether or not raised at the inquiry the Inspector ought to have been alerted to the fact that there were other issues to be considered in relation to the costs of bringing the development forward for the purposes of assessing the affordable housing contribution. He referred me to a letter dated 2nd March 2015 which he sent to the planning inspectorate for it to pass to the Inspector for consideration in relation to the appeal, to which was attached a letter sent by the developer's litigation solicitors to him in which a different figure was referred to. As I understand it, also with the attachments was a letter of 5th December 2014 from the solicitors who had acted for CFAG in the litigation.
15. What those letters make clear is that in so far as a larger sum was raised for consideration in relation to litigation costs, those costs were not affected by any issue of double counting and fell within the rubric of those costs which the Council surveyor said properly fell to be considered in the viability appraisal as part of the village green litigation costs. This much can be seen from the Lupton Fawcett letter. The litigation in the High Court, and as the Supreme Court judgment makes clear, was a lengthy piece of litigation. It lasted five days and for that CFAG were the claimant. The Supreme Court also refers to the extensive interlocutory proceedings. The letter from Lupton Fawcett makes clear that after deducting the £220,000, there was a shortfall in litigation costs in the sum of just over £500,000, £100,000 of which is attributable to difference between the costs incurred in the Supreme Court and Court of Appeal by the developer and the £220,000 paid by the Legal Aid Fund in respect of those costs. The fact that it was accepted in full and final settlement does not in one wit mean that the costs were not incurred and if incurred were properly then to be allowed for as costs in the viability appraisal.
16. There has also been reference before me to an informal discussion in which a larger sum of total expenditure including those legal costs was raised. But, as Mr Forsdick points out, and the witness statement of Mr Cook also makes clear, quite apart from the village green litigation costs and quite apart from any abnormal construction costs there are legal costs associated with bringing a site forward for development in any normal situation, which will include such matters as searches, conveyancing, any footpath diversions, negotiating agreements and so on, all of which are properly taken into account by way of costs. There is nothing before the Inspector which could have led him to conclude that the affordable housing contribution had been understated by reference to an overstatement of costs in the viability analysis.
17. Mr Adamson makes the point, and he makes it on a number of occasions, that someone in his position is at a disadvantage in the planning system. I recognise there may be circumstances in which that can be so. It may well be that in so far as material in relation to viability issues is passed quite commonly and properly on a confidential basis between the local planning authority and the developer, there is a limit to the extent to which an outside objector is going to be in a position to challenge those matters.
18. I accept that that is so but that is the only way in which this sort of contribution can be assessed. If the system does not permit some confidentiality, the only way it can be satisfactorily resolved is itself much less satisfactory.
19. I turn to the second issue which is raised in the supplementary submissions. This concerns a permission that was granted or said to have been granted in 1967 for the development of the site for a substantial residential development. I say "said to have been granted" because Mr Adamson was not prepared to accept that the planning permission process had in fact been fully completed even as far as back as 1967 although his principal contention was that the permission, if granted, had not been implemented and therefore had ceased to be extant as at the date of the informal hearing.
20. In support of his contentions he has referred to two e-mails which I am prepared to assume were before the Inspector although I am not certain about that. The exchange of e-mails concerned a request by the case officer at the local authority for a copy of the approved plan stamped as approved. The e-mail request said that the local authority did not have a stamped as approved plan, they had one likely to have been approved "but a plan with an approved stamp under planning would carry significant weight." He continued that he recognised that these documents were at the developer's bank, but they were important considerations for the authority and the Inspector and appeal. Nine days later the reply came back: "Is this what you were requesting the dates and stamps are clearly shown and this drawing was done as part of the application." The documentation which I have had provided to me includes for these purposes first, a notice of the grant of permission for development dated 30th January 1967 of the substantial residential development and signed by the borough architect and planning officer. It is perfectly clear that the planning permission was granted. The fact that, as Mr Adamson pointed out it refers to an amended plan, does not show it to be an ineffective or provisional grant, but a part related to an amended plan. Secondly, I have the plan to which the developer refers in accordance with the accompanying plans. The plans which I have seen, perhaps from their photocopying make it difficult to see a particular approval stamp, but it is perfectly clear that those are the plans sent by the developer following the request and are the plans which were sought. For my part, I would not be prepared to consider that planning permission was not granted. Indeed, I note, as I leave that point and turn to the question of implementation, that the Supreme Court reached its decision on the basis that the planning permission of 1967 had been granted and was extant which meant that it had been implemented.
21. Mr Adamson says that there really is no evidence that it was implemented. But that involves some quite complex factual issues. If they are to be raised they had to be raised before the Inspector and they were not. The position, as Mr Adamson very fairly has accepted, was that the Council took the view that the permission was extant and therefore must have been implemented, so did the developer, so had Mr Adamson and CFAG up to the Supreme Court and beyond and so they did at the hearing itself. The Inspector was entitled, if not obliged, to accept that uniform view that the 1967 permission had been implemented. Mr Adamson's contention that he is now better informed and more inclined to take issue with the point is nothing to a challenge to the lawfulness of the Inspector's decision.
22. Even more fundamentally than that the 1967 permission plays no significant part in the Inspector's decision. The crucial feature of such an extant permission is usually to provide a fullback position for a developer in the event that he does not get what he wants. But in this case the principal development was in the Inspector's decision at paragraph 13 made acceptable because of the allocation of the site in the UDP for up 55 dwellings. Although that policy was time expired the effect of the National Planning Policy Framework was that planning permission had to be granted unless the adverse impacts would significantly and demonstrably outweigh the benefits. The principle having been established by the UDP the 1967 permission did not play a part in establishing acceptability.
23. Such a permission might also play a part in a developer contesting whether he should have to pay any affordable housing contribution. The developer in this case had been minded to attempt that argument. But for the purposes of the permission which he now actually sought he accepted that the right approach was to accept the current policies as applying and to meet them as best as he could. He met them in the end by agreeing to pay the affordable housing contribution. There is no other issue to which the 1967 permission was relevant other than a footpath issue in which the Inspector simply said, at the end of paragraph 28, that the aims and objectives of the 1967 permission in relation to public open space, footpaths and amenity would be met in the same way; in other words the public were not getting a worse deal under the new permission than might have been anticipated under the 1967 permission. There is no point in relation to that which could amount to an error of law on the part of the Inspector.
24. For the next issue raised by Mr Adamson concerns an error in the plans or a need on the Inspector's part to correct the application plan. This is misconceived. The position is this. The application red line plan encompassed to the north of the site a small area of land to the north of the stream known as Clayton Dyke, an area of land belonging to the local authority which extended south to the mid point of Clayton Dyke. The boundary between the local authority and the developer's land was not in dispute either at the inquiry or before me. It was also not in dispute but that the footpath which was to wend its way roughly along the south side of Clayton Dyke, although its precise location was not yet fixed, would all be on the developer's land and not on the council's land.
25. In those circumstances, the question of whether the ownership boundary either on the Land Registry plan or on the application plan was correct is neither here nor there. One thing is for certain: that it would have been wrong for the Inspector to adjust the red line application site so as to exclude the local authority's land. There is no requirement whatsoever for a developer to confine any planning application to land he owns. There are a number of consequences if he seeks to develop land he does not own. One is that he has to give notice to the land owner and certify that he has done so. That was done here. Another is that there may be circumstances in which non-ownership of land may give rise to a planning objection. This could happen where an important part of the development could not be brought about because the other land owner was refusing to allow the development proposed on it to take place. But that is not the position here either, because the developer can achieve a satisfactory woodland path without going on to local authority land. There was no need for any plan to be corrected; indeed, as I have said, it would be wrong for the red line to be corrected. The fear that someone might use the red line plan as indicating ownership of public land by the developer is not a realistic one. It does not affect ownership at all.
26. Next, Mr Adamson pointed to the conditions which the Inspector had imposed on the permission. Conditions 5 and 6 deal with the public owned space and footpath. Condition 5 refers specifically to the public open space and prevents development being carried out at all until a scheme for its provision has been approved by the local authority. Condition 6 deals specifically with the proposed woodland path and prevents occupation of any of the permitted dwellings until the footpath has been constructed and made available for use.
27. Mr Adamson points to a unilateral undertaking which was lodged by the developer with the local authority and presented at the inquiry. In that unilateral undertaking there is no specific reference to the footpath; indeed, no reference to the footpath appears to be implicit either. Instead, submits Mr Adamson, however there is a conflict between the conditions and the terms of the unilateral undertaking because the unilateral undertaking in the owner's covenant schedule (paragraph 4) deals with open space. Obligation 4 requires the open space works to be completed before completion of the 35th dwelling. Thereafter, the public open space has to be maintained in accordance with the management plan. By obligation six, the owner is not allowed to permit occupation of more than 50% of the dwellings until details of the open space management company have been approved by the local authority. Note that that is occupation, not completion. The whole development can be built out, but the limit there is on occupation.
28. There is no conflict between those provisions contrary to Mr Adamson's fears. The conditions relate, condition 6 in particular, to the footpath. If the footpath is not constructed, no dwellings can be occupied. They might all be built but none can be occupied.
29. Paragraph 6 of the owner's covenant schedule says that not more than 50% can be occupied until details of the open space management company have been approved. They are different things that have to be done by different trigger points. There is no contradiction between the two. There is no need for the footpath obligation to be included in the unilateral undertaking. Underlying this submission, said Mr Adamson, was a concern that the developer, possibly with the connivance of the Council, would take no steps to enforce the obligation in the condition and would ignore any breach. I am not satisfied that there is any evidence to that effect. But even if there were, the remedy cannot be to quash an otherwise perfectly lawful decision of the Inspector. The remedy lies in the hands of Mr Adamson or any other person who wishes to take the point, to challenge any failure on the part of the local authority to enforce the conditions imposed. Such a challenge can take place both legal and informal or political means and they do not and are not limited to inviting the Secretary of State to take such default measures as he has power to take.
30. Finally, I should just add that Mr Adamson raised the question of the very low land value and the current value used in the development appraisal. But the Inspector explains in paragraph 37 of the decision why the current use value was properly taken as it was, for the purposes of incentivising a developer. But in essence the complaint is that the rescheduled hearing was not properly notified to a number of those who were interested in either writing to oppose the development or attending to make their opposition known orally. The Inspector deals with this in paragraph 9 of his Decision Letter where he said:

"Finally, at the Hearing several local residents stated that they had not been notified of the re-scheduled event and interested parties may not have been in attendance as a result. In response the Council produced a copy of the Hearing notification and a list of properties it was sent to. Based on the evidence available, and bearing in mind the significant number of interested parties in attendance, I am satisfied that the correct notifications were issued."

31. Mr Adamson has contended that the planning Inspectorate's website did not show, as seemingly it ought to have done, a number of letters that had been sent and so he submits they are not taken into account. That has not been adequately raised in time to be dealt with but I am prepared for the moment to assume that that was so. He also says (producing two letters) that people did not receive the Council's e-mail or written notification. I note that the two who have produced statements were both present at the informal hearing and from their position, as CFAG Vice-Chairman and his partner, they were well aware of the proceedings. I also note that CFAG, as local groups often do, in order to convey fully to the Inspector the extent of opposition to a proposal, had circulated details of the rescheduled hearing, perhaps fearing that the local authority's endeavours had not been as effective as intended. There were also two site, notices placed on the site when concern was raised about the degree of notification, in such a position that those using the popular footpath would be able to see the point.
32. I am not satisfied that there is any evidence of a breach of procedural rules. More importantly, there is no evidence at all that anyone who was unaware of the hearing had something different to say of possible significance which they were unable to say as a result of the shortcomings that are alleged in respect of the notification. Merely having more people saying the same thing would not have advanced matters because this was not a case in which the Inspector was under some illusion as to the extent of local opposition. That was perfectly clear to him, not just from those attending and from the letters but from the whole history, of which he was again well aware, of local opposition, reflected in the registration of the site as a village green, to its development.
33. I am not satisfied therefore that shortcoming occurred. If it did occur, it certainly had no effect whatever on the material which the Inspector was able to consider or on the fairness of the hearing.
34. For these reasons and notwithstanding the courteous and considered submissions of Adamson, this challenge is dismissed.
35. MR WESTMORELAND SMITH: My Lord I am grateful and in those circumstances I ask for the Secretary of State's costs. My Lord, have you seen a cost schedule? One was sent to the court. In total the amount claimed is £9,012.15. That schedule was sent to Mr Adamson. It includes, perhaps unusually, the Secretary of State preparing the hearing bundle, to help out the litigant in person and the authorities bundle and a degree of correspondence with prospect of estates who took an activity role and helpful role in this application.
36. MR JUSTICE OUSELEY: Are there any other applications?
37. MR FORSDICK: There is no public cost application.
38. MR JUSTICE OUSELEY: Mr Adamson what do you want to say about the application and the amount?
39. THE CLAIMANT: Well, I would obviously say it is completely unfair.
40. MR JUSTICE OUSELEY: It is unfair?
41. THE CLAIMANT: It is unfair in the circumstances. It probably does not need saying that we do not have the resources. But there are a number of fairly major anomalies with due respect to your judgment, a number of fairly major anomalies in it that we would challenge and I think in relation to the 7 planning permission, the written planning permission, the reference to amended plan there, which has not been registered altogether is very significant.
42. MR JUSTICE OUSELEY: Where is the reference to amended plan?
43. THE CLAIMANT: It is on the planning permission itself.
44. MR WESTMORELAND SMITH: My Lord if you have the planning permission in front of you it is tab 10 in the supplementary submissions. That is the small bundle. You will notice of permission to George H and then in pursuant of the powers and at the end of that letter.
45. THE CLAIMANT: Which implies that, at least to my mind, that planning permission is provisional on the amended plan and it is the amended plan that we are seeking and we do not think is extant. We do not think that planning permission is actually completed in and acted on and it is a crucial point. There has been plenty of opportunity for Prospect Estates to satisfy that point.
46. MR JUSTICE OUSELEY: That has nothing to do with the merits of this case.
47. THE CLAIMANT: It has everything to do with the justice of the situation.
48. MR JUSTICE OUSELEY: There will be an order for costs in the sum of £9,012.15 pence against Mr Adamson in favour of the Secretary of State.
49. MR FORSDICK: When it comes to the transcript of the judgment it might assist your Lordship, there are a couple of points which I am not sure what you said was quite right. Just purely factual matters. At one point you referred to the action group as "claimant" in the litigation rather than the defendant in that litigation. They were the defendant.
50. MR JUSTICE OUSELEY: Yes. We all get a bit lost. They were the defendants to the main proceedings in the High Court.
51. MR FORSDICK: And the appellant.
52. MR JUSTICE OUSELEY: The appellant in the Court of Appeal.
53. MR FORSDICK: Then respondent in the Supreme Court.
54. MR JUSTICE OUSELEY: Everything.
55. MR WESTMORELAND SMITH: The other matter, my Lord, the letter your Lordship referred to the letters from Paddico Solicitors and gave the wrong date. It is the 5th December 2014 not 2004.
56. MR JUSTICE OUSELEY: I might have worked that one out. Lupton Fawcett.
57. MR FORSDICK: Chronologically your Lordship did not make sense because of that.
58. MR JUSTICE OUSELEY: Okay. Thanks very much. I am grateful to you all. I know the transcript takes a little bit of time but I am going to ask for the transcript to be expedited and sent to me as soon as possible.