England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10th December 2003

Mr Justice Forbes:

1. Introduction. Mr and Mrs Tromans ("the Claimants") live at Ashbanks House, 20 Washbrook Lane, Norton Canes, Cannock. The Local Planning Authority for the area is the Defendant, Cannock Chase District Council ("the Council").
2. In these proceedings, the Claimants seek relief by way of judicial review of the Council's decision to grant planning permission for the development of the land situated at 22, Washbrook Lane, which is adjacent to the Claimants' property.
3. The planning permission in question was issued on 2^nd April 2003 and granted permission for one detached dwelling and garage with retention of a temporary mobile home. The Council's Planning Control Committee ("the Committee") resolved to grant the planning permission at a meeting of the Committee held on 2^nd April 2003.
4. Originally, the Claimants' challenge to the planning permission was based on a total of seven grounds, that may be broadly summarised as follows:

(1) failure to have regard to material considerations, namely the reasons for the earlier refusal and the planning officer's recommendation for refusal, including conflict with development plan policies (Grounds (i) (ii) and (iii));

(2) irrationality (Ground (iv));

(3) apparent bias and predetermination by certain members of the Committee (Grounds (v) and (vi)); and

(4) procedural unfairness in respect of the counting of the votes of the Committee at the meeting on 2^nd April 2003 (Ground (vii)).

5. In the event, during the course of the hearing before me, Mr Tromans made it clear on behalf of the Claimants that Grounds (v) and (vi) were no longer pursued, in the light of the evidence that had been filed on behalf of the Council. Accordingly, the Claimants' challenge to the planning permission was confined to the grounds summarised in sub-paragraphs (1), (2) and (4) of paragraph 4 above. It is, therefore, unnecessary to give any further consideration to the original allegations of apparent bias and predetermination.
6. On 22 July 2003, Richards J. ordered (inter alia) that the Claimants' application for permission to apply for judicial review be adjourned to an oral hearing, to be listed on the basis that the substantive hearing was to follow immediately if permission was granted. On 12^th November 2003, having regard to the fact that both parties had prepared and filed detailed evidence and wished to deal with the matter as a substantive hearing, I granted permission at the outset of the hearing so that the matter proceeded before me as the substantive hearing.
7. The Issues on behalf of the Defendant Council, Mr Barrett summarised the relevant issues (correctly, as it seems to me), as follows:

(i) whether the Council failed to have regard to the material provisions of the Development Plan identified in the previous reports to the Committee;

(ii) whether the Council failed to comply with its duty under Section 54A of the Town and Country Planning Act 1990 ("the TCPA 1990") to determine the relevant planning application in accordance with the Development Plan Policies or identify other material considerations entitling it to take a different view;

(iii) whether the Council failed to have regard to a material consideration in favour of refusal; namely, the original first reason for refusal in March 2002 and the first recommended reason for refusal in the planning officer's report ("the planning officer's report") that had been prepared for the Committee's meeting on 29^th January 2003;

(iv) whether the Council acted irrationally in making the decision that it did on 2^nd April 2003; in broad terms, it is suggested that there were no adequate or intelligible reasons for and/or no such reasons were given (in either the planning officer's report or the Committee's decision) to explain the apparent departure from the planning officer's advice and/or the Committee's subsequent refusal in March 2002 and/or the planning officer's advice given in January 2003; and

(v) whether the Council acted in a procedurally unfair manner with regard to the counting of the votes at the Committee meeting on 2^nd April 2003.

8. The Statutory and Planning Policy Framework

(1) Section 54A of the TCPA 1990 provides as follows:

"Where, in making any determination under the planning Acts, regard is to be had to the development plan, the determination shall be made in accordance with the plan unless material considerations indicate otherwise".

(2) The applicable development plan is the March 1997 Cannock Chase Local Plan, of which the following are relevant policies:

(i) Policy B8 which (so far as material) provides as follows:

"DESIGN PRINCIPLES FOR NEW DEVELOPMENT

The District Council will expect the development of buildings to be designed, sited and grouped so as to :-

(i) provide an interesting, attractive and high quality environment;

(ii) be well related within the development and to existing buildings and their surroundings in terms of design, scale and materials;

(iii) be in sympathy with and enhance the character and appearance of the local area, including its landscape characteristics;

(iv) include measures to safeguard local amenity including landscaping and screening;

(v) avoid any adverse effects of loss of amenity to adjacent properties; … "

(ii) Policy H3, which is in the following terms:

"DESIGN

The district council will seek high standards of design in residential development".

(iii) Policy H5, which provides as follows

"INFILL DEVELOPMENT

Infill housing and minor consolidation will be acceptable within existing residential areas outside the Green Belt, provided that the development does not involve the loss of significant amenity space or impinge upon the Green Space Network, would not detract from the character of a residential area and would not be detrimental to the amenity of neighbouring properties."

The Factual Background. The land which comprised what is now the separate plots known as numbers 20 and 22 Washbrook Lane was itself the subject of an outline planning permission for residential development granted on 24 June 1998. The time for application for approval of reserved matters under that particular permission expired on 24 June 2001. The proposed development, in respect of which the outline permission had been granted, referred to one house (on the lower level to Washbrook Lane) and one bungalow (on the higher level to Bridleway).

In March 2000, the Claimants purchased the part of the original overall site that is now 20 Washbrook Lane (the lower level land) as a building plot. In due course, they obtained detailed planning permission for a detached two-storey house (with a third floor in the attic space). They had purchased and developed their land, having been informed by the Council that the adjacent elevated plot (now No 22) had the benefit of planning permission for a bungalow (by reason of the existing outline permission): see paragraphs 1 to 3 of Mr Tromans' witness statement dated 23^rd April 2003.

In April 2001, the adjacent elevated plot (No 22) was sold at auction. In November 2001, the Claimants received a letter from the Council dated 26^th October 2001 informing them that a planning application had been received, seeking detailed permission for the residential development of the adjacent site at 22 Washbrook Lane by the erection of a detached dwelling and the temporary retention of a mobile home. The applicant was Mr Richard Birch ("Mr Birch").

The day after they received the Council's letter, the Claimants inspected Mr Birch's planning application. On 8^th and 10^th November 2001, the Claimants wrote to the Council objecting to the development. In particular, the Claimants objected to the size and placement of the proposed house as over-development of the site and as having an over-bearing effect on their adjacent property.

This particular planning application was duly considered by the Council at the Committee meeting that took place on 14^th March 2002. In the usual way, one of the Council's planning officers had prepared the planning officer's report for the purpose of informing members of the Committee of the relevant considerations relating to (inter alia) the application and making an appropriate recommendation to the members. So far as material, the planning officer's report was in the following terms:

"LOCAL PLAN POLCIES

B8 Design Principals

H5 Infill Development

RECOMMENDATION: REFUSAL FOR THE FOLLOWING REASONS

1. The proposed residential unit would result in a three-storey elevation when viewed from Washbrook Lane. The site is located at an elevated level and the development would create an overly dominant feature when viewed from surrounding land. This feature would be incongruous in the local environment and would be detrimental to the character of the locality.

2. The proposed location of the residential property would result in the loss of a number of trees to the Washbrook Lane frontage. These trees enhance the character of Washbrook Lane and their loss would be detrimental to the amenity of the area.

The proposal is therefore contrary to policies H5 and B8 of the Adopted Cannock Chase Local Plan. …

OBSERVATIONS: -

1.1 The application relates to a site area of 0.068ha. The proposal is for a detached four bedroom, three-storey property and a detached double garage. The floor area of the property measures approximately 105 square metres. The site is located adjacent the Green Belt boundary.

1.2 Outline permission for residential development was granted in 1998 with all matters reserved. The outline approval covered the site currently under consideration and the adjacent area of land that has since had separate approval for a detached property (now constructed). The illustrative layout submitted with the outline application did indicate a property on the current application site as well as one on the adjacent plot.

1.3 The principal of residential development has therefore previously been accepted on this site (although the outline has now expired). However, the site is physically constrained in terms of a significant number of mature trees along the Washbrook Lane boundary and severe changes in levels across the site (with the majority of the site at a higher level than Washbrook Lane and the adjacent residential property).

1.4 The property is stepped in its design in order to negotiate the change in levels. This would result in a three-storey property facing Washbrook Lane but a two-storey property facing the rear boundary of the site. The property would therefore present a very dominant façade to Washbrook Lane, on what is a prominent site at a high point on Washbrook Lane. This façade would be overly dominant and would present an incongruous feature when viewed from the road and the adjacent public footpath.

1.5 There are several mature trees along the Washbrook Lane boundary of the site which enhance the character of the road. A number of trees would be adversely affected by the proposed close proximity of the property and would ultimately be lost as a result of the development. …

1.8 Conclusion

Whilst the site is appropriate for residential development, the current proposal would result in an overly dominant feature in the street scene, due to its scale and siting. The current proposal would also result in the loss of a number of trees that enhance the character of Washbrook Lane. The proposal would therefore be detrimental to the character of the area and refusal is recommended."

On 14^th March 2002, the Committee unanimously decided to refuse planning permission for the proposed development for the reasons given in the planning officer's report.

On 17^th September 2002, the Claimants were notified by letter that there had been a further application for planning permission with regard to No 22. They duly inspected the plans and came to the conclusion that little had changed. Accordingly, they wrote to the Council on 24^th September 2002 and maintained their opposition to the proposed development.

On 13^th December 2002, the Council's planning officer, Ms Angela Groves, who had recently taken over the responsibility for dealing with the application, wrote to Mr Birch's architect, Mr J.L. Ainge of Ainge Design Consultancy, as follows (inter alia):

"Proposed Residential Development (One Dwelling and Garage) and Retention of Mobile Home at 22 Washbrook Lane, Norton Canes

I refer to the above application and apologise for the delay in replying due to a recent high workload.

Following consideration and consultations regarding your proposal, the following issues are raised:-

1. The previous application was refused for two reasons. The tree issue appears to have been largely overcome in the amended siting, however the design issue regarding the bulk of building still needs to be addressed. The removal of the dormers (which incidentally are still shown on the side elevations) above is not considered sufficient. Discussions with Mr. Hill prior to his departure from this authority indicated that this matter requires significant improvement to enable a positive recommendation to be made. This issue has also been raised again by neighbours and the Parish Council. …

3. Construction details for the retaining wall are required, as this will be a key feature both from a tree protection and landscape viewpoint. You state that the wall would be erected at ground level, however I would query whether this is possible. Surely some foundation will be necessary?…"

On 9^th January 2003, the Claimants received a further letter from the Council informing them that the amended plans relating to the application had been received. The Claimants inspected the plans and came to the conclusion that there was little difference from the original, refused application and no change in the size and scale of the proposed building. Accordingly, they wrote a further letter of objection to that effect dated 14^th January 2003.

In the meantime, it appears that Ms Grove became concerned at the apparent failure on the part of Mr Birch and/or Mr Ainge to address adequately the concerns that she had raised in her letter of 13^th December (in particular, with regard to the need to ensure that there was no material loss of trees). She therefore sought the advice of Mr John Heminsley, the Council's Development, Landscape and Conservation Manager. Mr Heminsley described what then took place, as follows (see paragraph 6 of his witness statement dated 19^th September 2003):

"My next involvement in the case was a conversation with the new Case Officer, Angela Grove, which would have been sometime in late December 2002 or early January 2003, when she approached me for advice on the case which had been handed to her. There was an unresolved objection from the Council's Senior Forestry Officer who was concerned that the siting of the dwelling would involve felling a number of trees, which he considered should be retained. She indicated to me that she was not receiving co-operation from the applicant or his agent in submitting the necessary information to deal with this issue. I indicated that, as this application had been hanging around for a considerable time, that it needed to be brought to conclusion. In the absence of any amendment or additional information we should take it to the next meeting of the Planning Control Committee on the 29 January 2003. I indicated to Ms. Grove that, as the tree retention/protection issues had not been resolved, I still had some concerns over the siting and design of the dwelling and that we should repeat our previous recommendation. I checked Ms. Grove's report on the application as part of the process of compiling the agenda for the meeting but I was not actually present to give advice at that meeting. …"

So it was that the planning officer's report, prepared by Ms Grove for the Committee's meeting on 29^th January 2003 at which Mr Birch's resubmitted application was to be considered, once more recommended that the application be refused, as follows:-

"Recommendation:

REFUSE FOR THE FOLLOWING REASONS

1. The proposed residential unit would effectively result in a three-storey elevation when viewed from Washbrook Lane. The site is located at an elevated level and the development would create an overly dominant feature when viewed from the surrounding land. This feature would be incongruous in the local environment and would be detrimental to the character of the locality, contrary the Local Plan policies B8 Design Principals for New Build Development and H5 Infill Development.

2. The proposed location of the residential unit in close proximity to the mature trees on the Washbrook Lane frontage would be likely to result in overshadowing providing a poor level of amenity and outlook for future occupiers contrary to Local Plan Policies DCP6 Space about Dwellings and B8 Design Principals for new Build Development. …

OBSERVATIONS

1 .1 The application is a resubmission for full planning permission for one detached house and garage and for the retention of the temporary mobile home.

1.2 The site is of an irregular shape sloping steeply down to Washbrook Lane in the southern corner. There are substantial trees along the site frontage and around site boundaries. The site forms the last plot in the building frontage and adjoins open country and the Green Belt. A bridleway joins Washbrook Lane at the north of the site. Most of the site is at a higher level than Washbrook Lane and the adjacent dwelling.

1.3 Outline permission for residential permission was granted in 1998 with all matters reserved which also covered the adjacent plot, which has since had a separate approval for a detached house, now constructed. The illustrative layout showed a dwelling on the site of the current application, however, no restriction was placed on the number of storeys. The principle of residential development on the site has therefore been established.

1.4 Planning permission was refused in 2002 for a similar proposal. Reasons for refusal were as follows;-

(1) The proposed residential unit would result in a 3 storey elevation when viewed from Washbrook Lane. The site is located at an elevated level and the development would create an overly dominant feature when viewed from the surrounding land. This feature would be incongruous in the local environment and would be detrimental to the character of the locality.

(2) The proposed location of the residential property would result in a loss of a number of trees to the Washbrook Lane frontage. These trees enhance the character of Washbrook Lane and their loss would be detrimental to the amenity of the area

1.5 Since refusal of consent in 2002 the siting of the dwelling has been amended to relate better to the existing trees in order to address one of the reasons for refusal. The design of the dwelling has been amended to remove the front dormer windows and reduce the height of the front gable projection in order to address the other reason for refusal. The overall height and footprint of the building remain the same, although the applicant has attempted to set the building lower into the site.

1.6 Despite the amendments since the last submission the proposed dwelling would still create a dominant façade to Washbrook Lane as there has been little change in the overall mass and bulk of the building. The amended siting would avoid the loss of trees on the frontage, however would still result in the proposed dwelling being overshadowed by trees providing poor levels of amenity and outlook for future occupiers. Objections have been received on similar grounds as before. …

1.8 Conclusion

Whilst the site is appropriate for residential development in some form it is physically constrained by trees and changes in level. The current proposal is not considered to sufficiently address previous concerns to overcome the first reason for refusal and whilst the second reason has been largely addressed, concern is still felt at the poor levels of amenity for future occupiers as a result of the close proximity to the trees. Refusal is recommended."

However, after the agenda papers for the meeting of 29^th January (including the planning officer's report) had been issued to the Committee members, the Planning Department received a letter from Mr Birch requesting that his application be deferred "to facilitate further negotiation with your officers".

Accordingly, at the meeting on the 29^th January 2003, the Committee agreed to Mr Birch's request and resolved (i) to defer consideration of the planning application and (ii) to carry out a site visit prior to its consideration of the application at a future meeting. The Council's Head of Planning Services, Mr Paul Garbett, described what transpired at the meeting on 20^th January, as follows (see paragraphs 9 and 10 of his witness statement dated 29^th September 2003)

"9. At the Committee meeting on 29th January, when the agenda item to 22 Washbrook Lane was reached the letter from the applicant requesting deferral of a decision was reported verbally by officers to Committee members in accordance with the normal practice I have described above. The Committee resolved to agree to defer consideration of the application. The Chairperson of the Committee at that time, Mrs Zaphne Stretton, then requested that a Committee site visit should take place prior to reconsideration of the application at a future Committee meeting. Mr Tromans, who had made a request to address the Committee under the Council's Protocol for Public Speaking at Planning Control Committee, was then asked by the Chairperson whether he wished to speak at that time or defer speaking until the date when the application would come back before the Committee. The Protocol, a copy of which is included in the court bundle at pages 147-148, states that this choice will be offered to speakers in a situation where consideration of an application is to be deferred.

I recall that Mr Tromans stated that he would defer speaking until the date when the application was to be reconsidered by the Committee. I also recall Mr Tromans stating that he hoped the application would not be deferred for very long as the matter had already been under consideration for a long time, or words to that effect. In response to this comment, I stated that officers would use their best endeavours to report the matter back to the Committee as soon as possible. …"

Shortly after the meeting of 29^th January, Mr Birch approached the Committee's Chairperson, Councillor Phylis Zaphne Stretton ("Mrs Stretton") and requested a meeting with a senior planning officer "with a view to trying to resolve the outstanding issues" relating to his planning application. Suitable arrangements having been made, the meeting duly took place on 31^st January 2003 in one of the interview rooms in the reception area of the Civic Centre ("the Civic Centre meeting"): see paragraph 7 of Mr Heminsley's witness statement.

Present at the Civic Centre meeting were Mrs Stretton, Mr Heminsley and Mr Birch. In paragraph 7 of his witness statement Mr Heminsley described what happened at the meeting, as follows:-

"7. … 1 had visited the site and reviewed the file before the meeting. The application proposed the siting of a dwelling on the sloping part of the site which involved a design in the form of a part three-storey, part two-storey dwelling. The proposal had been reduced in size from the earlier scheme by reducing the width and height of a forward projecting gable, omitting two dormer windows in the roof space and making a slight alteration to the siting of the dwelling. Notwithstanding these amendments, it seemed to me that there was an easier way of constructing a dwelling on a flat portion of the site, which would allow a more conventional two-storey property to be built. I asked Mr. Birch why he had not considered siting the dwelling on the flat part of the site. He responded by saying that he wanted the dwelling sited as proposed in order to incorporate accommodation for his father and have a private garden to the rear of it rather than parallel to Washbrook Lane. I explained that if this was his preference, provided that the amended design secured protection and preservation of the trees, I felt that this would overcome the reasons why officers had recommended refusal of the application. I stated that the basic requirement would be to prove that there would be no disturbance to the root systems of the trees indicated to be retained on the drawing and that the sequence of events in relation to the construction would need to be erection of protective fencing to the extent of the canopies of the trees and then construction of an appropriate retaining wall outside this fence line, the design of which would need to involve no disturbance to the ground within the canopy. This would need to be designed based upon advice from a Structural Engineer to show that it would support the ground in question and not damage the trees. Mr. Birch agreed to contact his agent to supply the additional information. Councillor Stretton's participation in the meeting was limited to seeking confirmation from Mr. Birch that he understood what was being required of him and his architect. … "

A few days after the Civic Centre meeting, Mr Heminsley made the following hand-written note of what had taken place and placed it in the file relating to the application:-

"Note of meeting 31.1.03 Mr Birch

Cllr Z. Stretton

J. Heminsley

Meeting at the request of Mr Birch to discuss issues relating to his application.

J.H. indicated that a more appropriate siting for the dwelling would be on the flat part of the site facing west. Mr Birch explained that he wanted the dwelling sited as he proposed in order to incorporate accommodation for his father and to have a private garden to the rear rather than side-on to Washbrook Lane.

J.H. explained that if this was his preference provided that the amended design ensured the protection and preservation of the trees this could overcome the problem with the application. J.H. indicated that there must be no disturbance to the root system of the trees indicated to be retained and that the sequence of events would need to be to erect protective fencing then construct an appropriate retaining wall outside this which would involve no disturbance of the ground. Need structural engineer's report to prove the retaining wall would support the ground and would be designed not to damage the trees.

Mr Birch agreed to provide the additional information".

On 6^th February 2003, Mr Ainge wrote to Ms Grove, giving the following details of the additional information that had been sought by Mr Heminsley at the Civic Centre meeting:-

"RE: 22, Washbrook Lane,Norton Canes,

Further to the planning consultation response from Mr McDermott of the Urban Forestry Department I would confirm that a structural design of the proposed retaining walls has been obtained a(nd) two copies are enclosed for you(r) attention.

In respect of the queries raised in paragraph 4, I would confirm that the protective fencing will be erected prior to any work being carried out on the site, it follows that the house will then be constructed and following completion of construction works the land will be graded and the retaining walls built all in accordance with the proposed design

I do hope that this information will enable you to process the application as soon as possible, but should you require any further information please do not hesitate to cont(act me further)… "

From Ms. Grove's hand written note on Mr Ainge's letter, it appears that Mr Birch delivered the letter and its enclosures by hand to the Council's planning department. Ms. Grove immediately contacted Mr Heminsley and steps were taken to obtain appropriate advice from the Council's Urban Forestry Officer and a senior Building Control officer with regard to the proposed siting of the retaining wall and fencing and the suitability of the design details that had been sent by Mr Ainge.

The advice given to Ms Grove and Mr Heminsley was in the following terms:

"… the design was satisfactory from a structural point of view and the overall proposal of tree protection incorporating that design and location of the protective fencing was also acceptable." See paragraph 8 of Mr Heminsley's witness statement.

Having regard to that advice, Mr Heminsley decided that Mr Birch's planning application could now be supported. In his own words (see paragraph 8 of his witness statement):-

"I was satisfied that the application could now be supported. I then discussed the matter with Angela Grove and we agreed that, in the light of the additional information supplied, the proposals were now capable of being supported subject to conditions. I therefore asked Ms Grove to produce a report for the next available meeting of the Planning Control Committee "

Ms Grove then proceeded to prepare the planning officer's report with regard to Mr Birch's application for use at the Committee's meeting that was due to take place on 2^nd April 2003. Mr Heminsley checked the report and was also present at the meeting. So far as is material, the planning officer's report stated as follows:-

"4. Application No: CH/02/0555 Received 12-Sept-2002

Location: 22 Washbrook Lane, Norton Canes

Description: Residential Development – One Detached Dwelling and Garage with retention of a temporary mobile home – Resubmission of CH/01/0665 "…

Local Plan Policies:

B8 Design Principles of New Build

H3 Design

RECOMMENDATION Approve subject to conditions …

7. E5 Tree Preservation

8. E8 Tree Protection …

OBSERVATIONS

1.1 The application is a resubmission for full planning permission for one detached house and garage and for the retention of the temporary mobile home.

1.2 The site is of an irregular shape sloping steeply down to Washbrook Lane in the southern corner. There are substantial trees along the site frontage and around site boundaries. The site forms the last plot in the building frontage and adjoins open country and the Green Belt. A bridleway joins Washbrook Lane at the north of the site. Most of the site is at a higher level than Washbrook Lane and the adjacent dwelling.

1.3 Outline permission for residential development was granted in 1998 with all matters reserved which also covered the adjacent plot, which has since had a separate approval for a detached house, now constructed. The illustrative layout showed a dwelling on the site of the current application, however, no restriction was placed on the number of storeys. The principle of residential development on the site has therefore been established.

1.4 Planning permission was refused in 2002 for a similar proposal. Reasons for refusal were as follows:-

(1) The proposed residential unit would result in a 3 storey elevation when viewed from Washbrook Lane. The site is located at an elevated level and the development would create an overly dominant feature when viewed from the surrounding land. This feature would be incongruous in the local environment and would be detrimental to the character of the locality.

(2) The proposed location of the residential property would result in a loss of a number of trees to the Washbrook Lane frontage. These trees enhance the character of Washbrook Lane and their loss would be detrimental to the amenity of the area.

1.5 Since the refusal of consent in 2002 the siting of the dwelling has been amended to relate better to the existing trees in order to address one of the reasons for refusal. The design of the dwelling has been amended to remove the front dormer windows and reduce the height of the front gable projection in order to address the other reason for refusal. The overall height and footprint of the building remain the same, although the applicant has attempted to set the building lower into the site.

1.6 Whilst there has been little change in the overall mass and bulk of the building, the design amendments go some way towards reducing the apparent dominance of the façade facing Washbrook Lane. The amended siting overcomes the concerns in respect of the trees, the retention of which would provide some screening along the road frontage. The proposal exceeds spatial separation distances from neighbouring dwellings and no significant loss of amenity is considered likely to result. In respect of the nearest neighbouring dwelling the separation is 19 metres compared with the normal requirement of 15.25 metres, and in view of the difference in ground levels this is considered appropriate. No objection is raised by the Highways Officer subject to conditions. The septic tank has been re-sited to enable one tree to be retained on the rear boundary as requested by one neighbour.

1.7 Following refusal of the previous application in March 2002 discussions took place between your officers and the applicant in an attempt to produce a scheme which could overcome the reasons for refusal. The current application was submitted in September 2002 and negotiation has continued since. The applicant does not wish to amend the scheme further. It was not considered appropriate to pursue enforcement action against the temporary caravan whilst negotiations were ongoing. …

1.9 Conclusion

Whilst the site is physically constrained by trees and changes in level, it has already been established that it is appropriate for residential development. The current proposal is considered to adequately address previous reasons for refusal and is unlikely to result in any demonstrable loss of light or privacy to neighbours. Approval is recommended."

In paragraph 12 of his witness statement, Mr Garbett described how, prior to the Committee's meeting on 2^nd April 2003, he considered Ms Grove's report, discussed the matter generally with Mr Heminsley and agreed that the revised report and recommendation for approval should be presented to the Committee, as follows:-

"Events between 29^th January and 2^nd April 2003

12. I had no further involvement in the application until draft reports were prepared on applications to be considered at the Committee meeting on 2nd April. I received these draft reports to read on 20th March. One of the draft reports related to 22 Washbrook Lane. I noted that the recommendation had changed from refusal to approval. I discussed all of the draft reports with Mr Heminsley, as is my normal practice in finalising the content of reports before they are published in the Committee agenda papers. I recall that we discussed changes that had been made to the application relating to 22 Washbrook Lane, in particular the submission of additional written information and plans showing details of a retaining wall and tree protection measures. This information had been considered by the Council's arboricultural officer, who advised that in his opinion there were now no arboricultural limitations to the proposed development. A copy of the arboricultural officer's written advice is contained in the court bundle at page 113. Mr Heminsley and I both concluded that this additional information demonstrated satisfactorily that existing trees on the site could be retained without being damaged during the construction of the proposed dwelling. Retention of the trees would provide some screening along the road frontage of the site, which would mitigate to some extent the impact of the appearance of the dwelling upon the street scene. Having reviewed the application in the context of previous design amendments made prior to 29th January and additional information received after 29th January, taken as a whole, Mr Heminsley and I concluded that the reasons for refusal previously advanced in the report presented to Committee on 29th January could no longer be sustained. On this basis we both concluded that it was appropriate for the revised report on the application as drafted by the case officer, which now included a recommendation to grant planning permission, to be presented to the Committee. The agenda papers for the Committee meeting on 2nd April were published and circulated to Councillors on 25^th March.

13. On 25th March I received a letter from Mr and Mrs Tromans. The main point of the letter was an expression of concern that officers had changed their opinion regarding the application. I replied to the letter on 1st April. A copy of Mr and Mrs Tromans' letter and my reply are contained in the bundle at pages 109 and 92-93 respectively."

In the event, as I have already indicated, at its meeting on 2^nd April 2003 the Committee resolved to grant planning permission for the development proposed in Mr Birch's application. In the minutes of the meeting, the Committee's decision was recorded as follows:

"(iv) CH/02/0550: Residential development, one detached dwelling and garage, retention of temporary mobile home, 22 Washbrook Lane Norton Canes.

That application be approved subject to the conditions as set out in the Report.

Further updates relating to the application were reported.

Prior to consideration of this application, representations were made by an objector, the Parish Council representative and the applicant."

However, the issues that have been raised in this case make it necessary to give a more detailed account of what transpired at the meeting on 2^nd April. It is convenient to refer first to the evidence of Mr Garbett, because he included a helpful account of the procedure adopted at such meetings. In paragraphs 14 to 18 of his witness statement, Mr Garbett stated as follows:

"Planning Control Committee Meeting on 2nd April 2003

14. I attended the Committee meeting on 2nd April when the application was reconsidered. A second senior planning officer, Mr Heminsley, also attended the meeting. It is normal practice for at least two senior planning officers to attend all meetings of the Committee. Prior to the Committee meeting, members of the Committee had undertaken site visits in relation to 5 applications that were on the Committee agenda that day, including 22 Washbrook Lane. I did not attend any of the site visits by Committee members.

15. Cannock Chase Council has a protocol relating to public speaking at Planning Control Committee meetings. … In accordance with the protocol, Mr Tromans as an objector, Mrs Jean Hill representing Norton Canes Parish Council and the applicant (Mr Birch) all made oral presentations to the Committee on 2nd April expressing their points of view on the application, immediately before Committee members debated and then determined the application. The protocol states that at the end of each speaker's presentation, Committee members may ask the speaker questions if they wish to. I cannot recall whether or not any of the speakers were asked questions in the case of this application. The public speaking procedure is not designed to allow an opportunity for debate between speakers and Committee members or officers. The protocol also states that following any questions, the planning officer attending Committee may answer any points arising from the speeches before the Committee debates and determines the application. I did not speak in relation to this application but Mr Heminsley did address the Committee in relation to a number of points raised by speakers. Notes that I took during the Committee meeting indicate that he referred to information on retaining walls and tree protection measures submitted as part of the application after 29th January 2003, and also explained that a previous outline planning permission for residential development on the site granted in 1998 did not include approval of any reserved matters. I believe that he may also have responded to a query regarding the boundaries of the application site, but my notes do not refer to this point. There is now produced and shown to me, marked "PHG2", a true copy of my notes of the meeting on 2nd April 2003.

16. Committee members then discussed the application. I recall that several members spoke on the matter, some expressing support for the application and others indicating that they considered it should be refused permission. A motion to approve the application as recommended in the officers' report was moved and seconded, and a vote was taken on this motion. I counted the votes. 7 votes were in favour of the motion and 6 votes were against. Two other Council officers present at the meeting, Mrs Joyce McGoldrick (solicitor) and Mr James Dean (committee clerk) also counted the vote and recorded the result as 7 to 6 in favour of the motion.

17. One member of the Committee, Councillor Mrs Carol Boyle, had left the meeting at an earlier stage and re-entered the room just at the time that the counting of votes had been completed. She did not participate in the vote.

18. At a later stage in the meeting the Chairperson called a short adjournment for a "comfort break". During the adjournment Mrs Jean Hill approached me and stated that she believed the vote had been miscounted. She appeared to be under the impression that Councillor Mrs Boyle had participated in the vote. I replied that I was satisfied that the vote had been counted correctly. "

On Mr Garbett's copy of the officer's report he jotted down the following handwritten notes (Exhibit PHG2, referred to above):

"Speakers

Mr Tromans (objector)

Agenda misleading – Refusal rec. on 29 Jan When app. Deferred

Amendments were made prior to 29 Jan. report

Size of plot queried

12' short at rear

No objection to bungalow.

Jean Hill for Parish Objector

Concerned re.ground stability

Over-dominant impact on nearby cottages.

Outline pp for bungalow O.K.

Part of Site in Green Belt (discrepancy in site dimensions)

Mr Birch – Applicant

Site boundaries believed to be accurate

JH – Amendments since 29 Jan.

Tree protection and retaining wall details revised/added

Design of dwelling itself unaltered.

Previous outline was for residential devt. (all matters reserved). Although illustrative plan of bungalow

Bullock – concerned … overbearing nature

Satisfied from site visit set into slope of ground

( Move approval

M.Stretton – 2^nd

Carried: 7 – 6

(C.Boyle returned to Chamber as vote was being taken – didn't vote)."

Mr Tromans' account of what he said at the meeting is as follows (see paragraph 16 of his witness statement):

"16. When it came to the speakers I myself spoke first then Mrs Hill and finally the applicant. During my 5 minutes I raised all of the relevant issues and pointed out the recommendation was inconsistent and the deferment had been unjustified. The agenda was misleading and referred to amendments made prior to 29th January as if they had been made after the deferment. The main reason for refusal had not been addressed and the planning department chose not to insist upon its earlier request for substantial amendments and incredulously (sic) were satisfied instead with none. I raised the point that the rear boundary was incorrect and we had measured a 4.0m gap left for a public walkway where an 8.0m gap had been stipulated. Ourselves and another neighbour had constantly questioned the scale of the plans, as they appeared highly inaccurate. However, they were never checked nor have they been thus far. I also pointed out that outline planning was granted for a bungalow and this should be the first and constant point of reference having a major influence when deciding upon any subsequent detailed planning application."

In her witness statement dated 6^th June 2003, Mrs Tromans gave the following account of the voting at the meeting:

"… At the aforementioned meeting the count was recorded as 7-6 in favour of approval. I myself recollect counting the vote as 6 in favour of approval excluding the chairperson's vote, and 7 against approval. This number included the vote of Cllr Carol Boyle who entered the room during the vote and raised her hand to be counted. She had been present throughout the relevant speeches of my husband, the applicant and Jean Hill and only left the room for a few moments returning in time to cast her vote. Thus my personal recollection is a vote of 7-6 in favour of refusal without the chairs casting vote.

When the vote was recorded as 7-6 in favour of approval I immediately turned to Jean Hill sitting beside me to voice my belief that this was incorrect. She was simultaneously turning to me and agreed she considered that this was incorrect. We had both counted 7-6 in favour of refusal. We raised our concern immediately with Cllr Todd. Cllr David Clarke seated behind us was nodding in agreement. He also thought the vote was incorrect. "

Mrs Jean Hill is a Councillor on the Norton Canes Parish Council. She was present at the meeting on 2^nd April and spoke as an objector. Mrs Hill's account of the meeting is as follows (see paragraphs 5 to 9 of her witness statement dated 6^th June 2003):

"5. I spoke on behalf of Norton Canes Parish Council to recommend refusal of the Application.

6. I counted the votes at the time of the vote and counted 7 -6 in favour of refusing the Application (with the Chairperson not voting) but it was announced that the permission was granted. I included Councillor Mrs. C. Boyle as she had walked in during the count with her hand up

7. I immediately pointed out to Councillor Todd who is a Cannock Chase Councillor that I thought there had been a miscount. He said that the Chairperson had had the casting vote.

8. There was a recess at this point and during the recess I spoke to Paul Garbett, the Planning Officer, and made the same point about the count, but he also said the vote was correct. He also said it was too late now as he had to go on with the Meeting

9. Both Councillor Clarke and Councillor Green who are Parish Councillors and were present said to me that Mrs. Boyle's vote should have counted and this would have meant that the vote had been 7 -6 against the Application. "

Mrs Stretton's account of the voting at the meeting is as follows (see paragraph 18 of her witness statement dated 5^th September 2003):

"18. The Claimants allege that there was a miscount of the votes at the Planning Control Committee meeting of 2nd April 2003. This is untrue. I counted the votes and noted that there were seven votes for the application and six against the application. As is my normal practice, I asked the solicitor from the Legal Services Department to verify my counting of the votes. She confirmed that the vote was seven to six, in favour of the application. As I recall, I did not vote."

In paragraphs 10 to 12 of his witness statement, Mr Heminsley gave the following account of the 2^nd April meeting:-

"10. I was present at the meeting and I listened to the representations made by the applicant Mr. Birch and the objector Mr. Tromans. My main involvement in giving advice to members of the Committee at this meeting was to respond to particular points raised by Mr. Tromans which were that the original outline planning permission for development on the site in question restricted the development to being a bungalow and that no changes had been made to the application since the meeting on 29 January. I needed to correct these factual errors.

11. In relation to the first point the original planning permission for development of land in this area involving the site occupied by Mr. Tromans' property and the site which is the subject to this case was an outline planning permission granted on 21 June 1998 for residential development on the land in question. The permission did not contain a condition restricting any part of the development to be for a bungalow only.

12. In relation to the second point about lack of any amendment. I have already explained earlier in this statement the sequence of events after the meeting on 29 January. Additional information was submitted and this was placed on the application file showing the design of the retaining wall, the siting of the wall and the design and siting of tree protective fencing."

The Parties' Submissions. It was common ground that, in the circumstances of this case, there was a considerable degree of overlap between Grounds (i) to (iv) and that it was convenient, therefore, to deal with the issues raised by those Grounds together, leaving the issue raised by Ground (vii) to be considered separately.

Grounds (i) to (iv). Mr Tromans readily accepted that matters such as a building's mass and visual dominance are matters of planning judgment that are entrusted to the local planning authority. He acknowledged that, in arriving at its decision on such matters, a local planning authority will invariably have the benefit of its planning officers' advice.

Mr Tromans recognised that different persons can arrive at different conclusions on such issues and that views can change over time. However, he also submitted, uncontroversially, that it is important that planning decisions are taken in a rational manner, with proper regard to consistency of approach with previous decisions and with relevant policy. It was Mr Tromans' submission that, as alleged in the grounds of challenge in the present case (i.e. in Grounds (i) to (iv)), any failure in this respect can normally be expressed in a number of ways, namely as a failure by the decision-maker to have regard to relevant policies and/or to discharge its statutory duty under section 54A of the 1990 Act (Grounds (i) and (ii)) or as a failure to have regard to a material consideration (namely the reasons for a previous refusal) and/or to give reasons for departing from the previous decision (Ground (iii)) or as irrationality (Ground (iv)).

It was Mr Tromans' submission that, in the present case, there had been no satisfactory explanation for the apparent U-turn in the planning officer's recommendation with regard to the proposed development or for the inconsistency with the Committee's previous decision of 14^th March 2002 to refuse planning permission. He submitted that the reasoning of the planning officer's report to Committee for its 2^nd April meeting was deficient because it made no reference whatsoever to the officer's recommendation and supporting reasons for refusal that were made to the Committee only two months earlier for the purposes of its meeting on the 29^th January 2003.

Mr Tromans submitted further that, where a decision is taken to reverse a position taken so recently by the council and its officers, fairness and good administration require clear and unambiguous reasons to be given. He referred to and relied on the following passage in the judgment of Lightman J. in R v. East Hertfordshire District Council ex parte Beckman (1998) 76 P&CR 333 at page 337:

"Where a decision of the council is made to reverse a position taken twice in so recent a period, fairness and good administration require that the reasoning advanced by the council should be clear and unambiguous; it should not be contradictory, unsatisfactory or pregnant with possibilities or error."

Mr Tromans also contended that the circumstances were such that this was a case where adequate reasons for the Committee's decision to grant planning permission were plainly required: see R v. Aylesbury Vale DC, ex parte Chaplin (1998) 76 P & CR 207 at page 212 and R v. Mendip DC, ex parte Fabre (2000) 80 P & CR 500 at page 510, where Sullivan J. said this:

"I accept that, whilst there is no general duty to give reasons for the grant of planning permission, there may be circumstances where such a duty will arise. An obvious example of such a circumstance is, in principle, where a local planning authority has changed its mind and decided to grant planning permission for a development which it has previously refused: … I say "in principle" because it may be plain from all the surrounding circumstances why the council has changed its mind, as was the case in ex parte Chaplin…There may be cases where reasons should be set out in a minute. Ex parte Beckham was such a case on its facts. Equally, there may be cases where that would be unnecessary in the light of the factual background. …"

Of course, this case is not directly concerned with the reasons and recommendations of the planning officers, but with the reasons and decisions of the Committee. Mr Tromans readily accepted that, "where a planning officer makes a recommendation which is followed by the members, the reasonable inference is that the members did so for the reasons advanced by the officer, unless there is some indication to the contrary" (it was not suggested that there was any such indication in the present case): see Sullivan J. in ex parte Fabre(supra) at page 511. However, he submitted that, if the reasons for the planning decision in this case are to be found in the relevant planning officer's report and recommendation, those reasons are themselves irrational in failing to provide a clear basis for departing from the previous advice in relation to the same proposal. In those circumstances and by a parity of reasoning, the reasons and decision of the Committee is similarly flawed (Ground (iv) and Issue (iv)).

Mr Tromans therefore submitted that the Committee's decision to grant planning permission was flawed in that it had failed to have regard to a material consideration and/or had failed to give any or any adequate reasons for its decision (Ground (iii) and Issue (iii)).

Mr Tromans also pointed out that the earlier reasons for refusing permission, based on the dominance of the proposed dwelling and its detriment to the character of the locality, had been supported by reference to Local Plan policies B8 and H5. It was therefore his submission that an explanation was required as to how a proposal that was regarded in March 2002 and January 2003 as contrary to those policies apparently came to be regarded as consistent with them only a very short time afterwards. It was Mr Tromans' contention that the planning officer's report to the Committee on 2^nd April 2003 made no reference whatsoever to this particular aspect of the matter and that the obvious inference to be drawn was that there had been a failure to have any or any proper regard to those policies (Grounds (i) and (ii) and Issues (i) and (ii)) during the April 2003 decision-making process.

As Mr Barrett pointed out, it is clear that, in making each of its relevant decisions in March 2002 and April 2003, the Committee accepted and/or adopted the advice, reasons and recommendations of its planning officers. Accordingly, as it seems to me and as Mr Tromans made clear in the course of his submissions, the key question that is raised by Grounds (i) to (iv) is whether adequate reasons were given and/or there is a satisfactory explanation for the apparent U-turn in the planning officers' reasons and recommendation for approval of the proposed development in April 2003, when compared with those originally put forward in March 2002 and the Committee's resulting refusal of 14^th March 2002.

Mr Barrett submitted that when the entire factual circumstances relating to the proposed development of 22 Washbrook Lane (as summarised in paragraphs 9 to 37 above) are considered, it is clear that there is an adequate explanation and/or that sufficient reasons were given for the planning officers' change of opinion and the Committee's resulting decision to grant planning permission in April 2003 in accordance with the advice and recommendation of its planning officers, notwithstanding its earlier refusal of consent in March 2002.

It was Mr Barrett's further submission that, in all the circumstances of this case (in particular, the fact that the Committee had acted throughout in accordance with the advice and recommendations of its planning officers), the Committee had not been under an obligation to give any or any further reasons for its decision on 2^nd April 2003 to grant planning consent for the development in question.

In my view, Mr Barrett's foregoing submissions are correct. I also agree with his contention that, so far as concerns the Committee's meeting on 29^th January 2003, it is very important to bear in mind the following: (i) that the planning officer's report made it clear that significant amendments had been made to the original planning application (albeit, in the opinion of the planning officers, still insufficient at that stage to address fully their previous concerns), (ii) that the Committee was made aware that, at Mr Birch's request, there were to be further negotiations concerning the application between the Council's planning officers and Mr Birch, (iii) that, at the January 2003 meeting, the Committee members agreed to carry out a site visit and (iv) that, in the circumstances, the Committee decided to defer its consideration of the application to a future meeting.

Thereafter, on 31^st January 2003, the Civic Centre meeting between Mr Heminsley and Mr Birch took place, at which the planning officers' various continued concerns were discussed, in particular the mechanism whereby retention of trees that partially obscured the site could be ensured. Following that meeting, further detailed information was provided by Mr Ainge to the Council's planning department that showed the design of a retaining wall and an amended layout plan, detailing the position of the retaining wall and the protective fencing around the retained trees. The planning officers were then given appropriate expert advice to the effect that these various details were entirely satisfactory in both structural and arboricultural terms: see paragraphs 24 to 26 above.

Mr Barrett submitted (correctly, in my view) that, in view of the various changes that had been made to the original application and the further details that had been supplied by Mr Ainge with regard to the design of the retaining wall and the site layout, Mr Heminsley and Mr Garbett were entitled to come to the conclusion (as they did, both individually and in discussion with each other) that the application could now be supported, for the reasons given in Ms Grove's revised planning officer's report prepared for the Committee's 2^nd April meeting: see paragraphs 8 and 12 respectively of the witness statements of Mr Heminsley and Mr Garbett, quoted above.

Mr Barrett drew attention to the evidence that makes it clear that members did carry out a site visit before the meeting on 2^nd April and that the Committee only debated the matter and reached its decision after having heard a number of oral representations by interested parties. As Mr Garbett made clear in paragraph 15 of his witness statement, Mr Heminsley also addressed the Committee about a number of relevant matters before it made its decision, including the further details that had been provided with regard to the retaining wall and the tree protection measures.

Accordingly, it was Mr Barrett's submission that the evidence clearly demonstrates that there is, in all the circumstances of this case, a satisfactory explanation and/or a sufficiency of reasons for the change in the planning officers' advice and recommendations since that originally given in March 2002 and for the Committee's resulting decision of 2^nd April 2003. Mr Barrett submitted further that, by a parity of reasoning, there is no proper basis for impugning the Committee's decision as irrational. I agree with those submissions and reject Mr Tromans' arguments to the contrary effect. For those reasons, Grounds (i) to (iv) of the Claimants' challenge must therefore fail.

Ground (vii). Mr Tromans submitted that, as a matter of natural justice and procedural fairness, when the possibility of a miscount of the votes was immediately raised by Mrs Hill on behalf of the Claimants, steps should have been taken to verify the position. Mr Tromans stressed that the rules of natural justice or of fairness are not cut and dried and vary infinitely: see Wade on Administrative Law 8^th edition at page 487. It was Mr Tromans' contention that nothing could have been easier than for the Chair to have asked members to confirm how they had voted on that issue. He submitted that the closeness of the vote and the apparent controversial divergence from a recent earlier decision made it all the more important that the accuracy of the vote should have been checked.

Accordingly, it was Mr Tromans' submission that to have denied the Claimants the opportunity to have their immediately expressed doubts on a matter of such critical importance adequately dealt with was a breach of natural justice and procedurally unfair. He submitted that the Claimants suffered significant prejudice as a result and that, for those reasons, the Committee's decision to grant planning consent was flawed and should be quashed.

Mr Barrett stressed that there was no suggestion that there had been any procedural unfairness in the way the meeting had been conducted on 2^nd April 2003 up to and including the taking and counting of the votes of the members. He submitted that, in those circumstances, no issue of procedural fairness with regard to the decision-making process arises merely because no steps were taken to review the count of the members' votes (and, thus, the decision) in the light of a challenge from an interested member of the public. He submitted that this is even more so when, as here, the Committee's Chair took appropriate steps to check the accuracy of her count at the time: see paragraph 18 of Mrs Stretton's witness statement, quoted above.

I am satisfied that Mr Barrett's submissions are correct. It is important to bear in mind that there is no suggestion that there had been any form of procedural unfairness with regard to the conduct of the meeting or of the voting or of the actual counting of the votes. In my view, that procedurally fair decision-making process cannot be rendered unfair (retrospectively, in effect) merely because no steps were taken to carry out a further review of the count, in the light of a challenge from a member of the public, particularly when the Committee's Chair had already taken care to have the accuracy of her count confirmed by a solicitor from the Council's legal department.

Furthermore, such rights as the Claimants may have had to challenge the lawfulness of the Committee's decision, on the basis that there had been a miscount of the votes, were not removed or adversely affected in any way by the decision of the Chair to proceed with the remaining business of the Committee, a decision that she was, in my opinion, fully entitled to make.

Accordingly, I am therefore satisfied that Ground (vii) must also fail.

Conclusion. For the foregoing reasons, I have come to the firm conclusion that this challenge to the Council's decision of 2^nd April 2003, to grant planning permission for the proposed development at 22, Washbrook Lane, must be and is hereby dismissed.