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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Webster, R (on the application of) v Secretary Of State For Environment [1999] EWHC Admin 213 (8th March, 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/213.html Cite as: [1999] EWHC Admin 213 |
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1. MR.
JUSTICE SULLIVAN: This is an application for leave to move for judicial review
of a grant of planning permission by the respondent Council. The permission
was granted on the 16th June last year. On 22nd June, the applicant was told
that planning permission had been granted without there being an associated
section 106 agreement and, on the 1st July, the position was formally
regularised because the earlier version of the decision notice had mistakenly
referred to the fact that permission had been granted subject to a section 106
agreement, which was not in fact the case. On the 16th June, the Council had
concluded that there was no reason for requiring a section 106 agreement.
Therefore, on the 1st July, an amended decision notice was issued which
superceded the earlier decision notice. This application for leave to apply
for judicial review was made on 21st September last year. The background is as
follows.
2.
In the Wakefield Unitary Development Plan (UDP), the land to which this
application relates, together with other land, was originally designated as
open land. There were objections to that designation by the present applicant
and by the landowner to the north, Mr. Mackie. For the sake of convenience I
will refer to Mr. Mackie, even though the various ownerships and options were
in the hands of related companies. There were negotiations, and the applicant
and Mr. Mackie withdrew their objections to the designation in the UDP and
indeed instructed the same planning consultants to submit representations to
the inquiry. The gist of the agreed withdrawal was that the land would have the
'open land' designation removed and it would be replaced with a designation
which permitted of development, but in such a manner as would protect the open
character of the land by reason of landscaping. This co-ordinated approach, as
it was called, was in accordance with the Council's own revised approach to the
site. Hence it was that the Council's assistant head of planning services
wrote in October 1992 to the planning consultants, instructed by the applicant
and Mr. Mackie, enclosing a copy of what he described as illustrative concept
plan showing the broad principles as to how the land within the above special
policy area might be developed, broadly interpreting the text of the draft UDP
amendment. He went on to express his understanding that this accorded with the
objectors' proposals for the land.
3.
In response to that, on 23rd October 1992, the applicant's solicitor said
that, upon the basis that the proposals in the illustrative concept plan would
be implemented, they were going to withdraw their client's objections. The
illustrative concept plan showed a single access to the development area off
the A650 at the place where Red Hall Lane intersected with the A650. The
principles set out in that illustrative concept plan, discussed in
correspondence, were embodied in the UDP as adopted. The UDP designated the
land, Snow Hill, which is an extensive area, as a special policy area, and the
plan said this inter alia:
4. Then
it sets out certain broad objectives and criteria dealing with the land to the
east of the A650 and to the west of the A650. As far as the latter is
concerned, having dealt with various matters, it says this about vehicular
access:
5. That
supplementary planning guidance in due course appeared. In fact it post-dated
an application for planning permission for the northern part of the land which
had been made by Mr. Mackie, but the fact that it post-dated the application is
of no materiality, because the supplementary planning guidance was taken on
board by the Council in reaching its decision on the application. The
supplementary planning guidance cross-referred back to the UDP, and included
within it was a plan which showed the approximate position of the new junction.
That again was at the place where Red Hall Lane intersected with the A650. As
it said,
7.
As I indicated, Mr. Mackie had made an application for planning permission.
The history of the application is set out in a detailed report prepared for the
Council by the planning officer, indicating that the site for which Mr. Mackie
sought permission is a large area of agricultural land situated between the
A650 bypass and Bradford Road. It is clear that there had been a certain amount
of negotiating as to the precise position of the access point. The report
dealt with the matter in this way.
8.
The submitted plan indicated that the means of vehicular access to the
proposed site would be from the A650 bypass at the junction of Red Hall Lane in
accordance with the Council's concept plan submitted to the UDP inquiry and the
requirements of a revised draft Snow Hill development strategy. The applicant
subsequently submitted an amended plan and revised the application to the
amended plan excluding the Council owned land and proposed a different
vehicular access towards the northern end of the site. The planning officer
then expressed the view that this does not accord with the Council's adopted
UDP and the requirements of the draft development strategy. There was further
correspondence about inter alia vehicular access to the site, and the Council
sought to deal with the matter by saying that the applicant was seeking
approval of the principle, and not the precise means of access for the site
which could be reserved for subsequent approval.
9.
The matter went to the committee, and it was resolved by the committee
that the application be approved in principle on the understanding that
vehicular access was going to be a reserved matter and subject to further
consideration. It then transpired that that was not what the applicant wanted.
He did not wish the means of vehicular access to be a reserved matter, and so
there was yet further discussion and negotiation. Further amended plans were
received indicating a revision in the position of the proposed vehicular access
on to the A650. And, as finally put forward for the Council's approval, the
position of the roundabout access was, as the planning officer's report put it,
approximately a hundred meters to the north of Red Hall Lane. The report went
on to say this about the access:
10. The
report then considered various other matters in respect of the application, and
then turned to objections, noting inter alia that there had been an objection
to the position of the vehicular access on the A650.
11.
The report noted that on technical grounds, there are no highway reasons to
oppose this development provided that highway conditions indicated in the
report are attached to any subsequent planning permission. It then went on to
consider the objections, including the objection of the applicant in these
proceedings, that the position of the vehicular access is not in accordance
with the UDP and will lead to a landlocking/ransom situation, and that the
Council should consider a section 106 agreement to avoid the problem. The
officer commented on that.
12. He
then says that he has considered the papers submitted with the applicant's
solicitors' letter, and says:
13. The
report suggested certain conditions, one of which was that the sole means of
vehicular access to the site should be from the junction of the A650 bypass at
the point shown on the plan prepared by the applicant's planning permission,
and the second was that development shall not commence until the scheme for the
sole means of access from the A650 bypass has been submitted to, and approved
in writing by, the local planning authority and no part of the development
shall be brought into use until the works comprising the approved scheme had
been completed.
14.
The officer's report was subject to discussion amongst the members. One of
the members, Councillor Cocksill, was concerned about whether or not a section
106 agreement should be requested of the applicant for planning permission. He
recommended that the leader, the Chair, the Deputy Chair and Chief Officer
should look carefully at the question of whether it needed a section 106
agreement to safeguard the other owner, that is the applicant in these
proceedings. The outcome of that discussion was that the committee, on the 5th
June 1998, resolved to approve the application subject to the question of
whether a section 106 agreement was necessary or not being decided by a
sub-committee of those members and the officers. The sub-committee duly met on
16th June and concluded that a section 106 agreement was not necessary, because
what the Council wished to achieve could be achieved by way of imposing
conditions, and a section 106 agreement would simply duplicate those. The fact
that planning permission was going to be granted without any accompanying
section 106 agreement was communicated to the applicant for leave for judicial
review on 22nd June and, as I have indicated, the matter was corrected in
formal terms by letter of 1st July, issuing a further planning permission. The
planning permission contained a number of conditions. They included two
conditions to which I have referred, which were recommended in the officer's
report.
15.
Mr. Lewis on behalf of the applicant advances three propositions as to why
leave should be granted. Firstly he submits that the permission was granted
otherwise than in accordance with the development plan in that the access to
the proposed development is not located in the position envisaged in adopted
UDP, nor indeed that envisaged in the supplementary planning guidance published
under it, and it will jeopardise the comprehensive development of Snow Hill
special policy area, which is a policy objective of the Council.
16.
Secondly, he submits that the permission was granted without regard to the
fact that the applicant's objection to the UDP was withdrawn in the light of
assurances as to where the access point would be. And, lastly, he submits that
any difficulties could not be remedied by the exercise of compulsory powers
contrary to what seems to have been Council's belief in that regard. That
refers to a mention by the Council of compulsory powers mentioned both during
the discussions in committee and in subsequent correspondence.
17.
In considering whether or not these points are arguable, I bear in mind
that this has not been a short-form, 20 minute, application for leave for
judicial review. I have had a skeleton from Mr. Lewis, and I have also had the
assistance of a skeleton from Miss Paterson who appears on behalf of the
respondents. I have been supplied with a large volume of documents and, in
deciding whether this matter is truly arguable, I bear in mind the opportunity
that Mr. Lewis has had to advance his arguments before me.
18.
The first point is whether or not permission has been granted for an access
otherwise than in accordance with the development plan in reliance upon the
proposition that the access is not in accordance with the plan because it is a
hundred meters or so north of the Red Hall Lane junction. In my judgment, that
proposition is not arguable. It was for the Council, as a question of fact, to
consider whether or not the precise access position proposed was or was not in
accordance with the provisions of the UDP; matters of factual judgment are for
them. It is clear that an earlier proposed access point some way to the north
was regarded by the planning officer as not being in accordance with the plan.
19.
He then expressed his own professional judgment that the access point about
a hundred meters to the north of Red Hall Lane was in accordance with the
spirit and meaning of the UDP, and he explained why: because it enabled access
to be obtained to the development land proposed both to the east and west of
the A650. Since the UDP speaks simply of the access being in the vicinity of
the Red Hall Lane intersection and detailed requirements will be specified in
supplementary planning guidance; and that guidance itself gives the approximate
position for a new junction, it is quite impossible to contend that the Council
could not as a question of fact and degree conclude that a junction just a
hundred meters to the north of Red Hall Lane was in compliance with the UDP and
supplementary guidance. It is a matter that the Council considered and were
entitled to make up their own mind about. Indeed, subject only to the ransom
point, to which I shall turn in due course, the Council were fully entitled to
conclude that the access point as proposed, to which there were no technical
highway objections, met all the requirements of the UDP in terms of
facilitating the comprehensive development of a large area.
20.
Turning to Mr. Lewis' second point, he submits that the applicants had a
legitimate expectation that the fact of the withdrawal of their objections to
the UDP, and the basis on which those objections were withdrawn, would be
taken into account in determining the planning application, and he cites by way
of analogy the decision in
R
v Sevenoakes District Council ex-parte Wickham
.
The analogy is on any basis somewhat tenuous. In the
Wickham
case what had happened was that an objection to a compulsory purchase order had
been withdrawn upon the basis of a specific agreement. The application for
relief was in fact refused because it was held that the terms of the agreement
were not such as to give any rise to any legitimate expectation of a
substantive right. The only legitimate expectation was one of consultation,
and the applicant had indeed had the opportunity to make representations.
21.
In the case of a local planning authority charged with the duty of deciding
an application for planning permission, the Council is bound to take into
account not only the provisions of the development plan, but also other
material considerations. Under section 54A it is required to determine the
application in accordance with the development plan unless material
considerations indicate otherwise. Thus, on whatever basis an objection may be
withdrawn from a UDP inquiry, it has to be recognised that the planning
authority may take the view, if an application for planning permission is
subsequently made, that the other material considerations are such as to
outweigh the provisions of the UDP. In any event, in the circumstances of the
present case, the Council took the view that the access that was proposed was
in accordance with the provisions of the UDP.
22.
In so far as the applicant had any legitimate expectation of consultation,
that was fulfilled. The applicant had an opportunity to object to the
application for planning permission. He took that opportunity, his objection
was set out in the officer's report, and it was dealt with subject to the
complaint that the new form of access might require him to make a ransom
payment. It is plain, however, that the Council did address the issue of
landlocking. The Council, having considered that matter, took the view that
conditions should be imposed which would ensure that the point of access would
be capable of enabling access to all parts of the site to be achieved. Thus,
for example, development was not proposed which would physically block the
access from making provision for development of land to the south owned by the
applicant for leave for judicial review. The Council took the view that they
should ensure that, physically, the access was capable of ensuring the
comprehensive development of the whole site, and they secured that by way of
the imposition of conditions.
23.
The Council went on to consider the position of the applicant in commercial
terms, but took the view that that was a matter to be resolved by negotiations
between the interested parties. That was an attitude which the Council were
perfectly well entitled to take. The Council, as local planning authority,
are not concerned with the private rights of individual land owners and with
whether one land owner may or may not have to pay a ransom to another. The
Council, as planning authority, are concerned to ensure that the access will
facilitate suitable development in physical terms, subject of the land owners
entering into negotiations between themselves as to the terms on which they may
obtain access over each other's land.
24.
Mr. Lewis referred me to a decision of the Court of Appeal in
Arlidge
v The Secretary of State for the Environment
[1998] JPL 116. In that case, an Inspector had refused planning permission on
the basis of conflict with a policy in the structure plan TR 10 which said
inter alia that the local planning authorities will seek to ensure that
development "as far as practicable does not derive access from national
primary or county routes outside a built up area". The applicant said that the
Inspector erred in concluding that that policy was applicable because it was
not practicable for him to obtain access through another area, because the
Council had not taken any steps to ensure (as he thought it should have done)
that access could be obtained through that area. The Master of the Rolls said
this:
27. In
the present case, the applicant Mr. Webster says that he has not been able to
agree access across Mr. Macky's land, and it is contended on behalf of those
who act on behalf of the receivers of the company, following meetings in
September of last year, that not only was agreement not reached, but it seemed
that agreement was an impossibility. The Council has referred to the
possibility that compulsory purchase powers might be used. Mr. Lewis submitted
that proposal is untenable because the compensation payable to Mr. Mackie would
be based on open market value principles which would of course include any
ransom value. He submitted that in the circumstances, therefore, the Council
should have insisted on the section 106 agreement to ensure that the land would
be developed comprehensively and not be obstructed by the need to have to pay a
ransom payment.
28.
The note to the
Arlidge
decision is of course not part of the Court's judgment, and in so far as it
indicates that the position might have been different if access had been
completely refused, or if someone had held out for an exorbitant price, does
not assist Mr. Lewis in the circumstances of the present case. There is no
reason why the Council in this case could not properly take the view that it
was a matter for the land owners to agree between themselves as to the terms
on which access was going to be allowed to the roundabout on the A650. As a
last resort, if the ransom payment sought by Mr. Mackie was in the Council's
view so exorbitant as to be unreasonable and as to frustrate comprehensive
development, then they would be in a position to consider the use of compulsory
purchase powers. No doubt, before doing so, they would take the precaution of
obtaining a suitable indemnity from any land owner to the south. The practical
effect would simply be that the value of land owner's land to the south would
be reduced by the amount of the ransom payment that would have to be paid to
Mr. Mackie. The fact that such a ransom payment would have to be made does not
mean that the comprehensive development of the area would be inhibited in any
way. It is purely a commercial consideration for the land owner to the south.
As I indicated, if there really is a log jam than the Council can break the log
jam by the use of compulsory purchase powers, as a lost resort. Thus, the
Council has done what it needs to do in order to secure a comprehensive
development of the Snow Hill special policy area; it has approved an access
which is physically capable of serving that comprehensive development area, and
has left the owners, for the time being, to sort out the commercial terms on
which that access can be used.
29.
I turn lastly to the contention advanced on behalf of the respondents that
this application for leave to apply for judicial review should be refused in
any event because of the delay in applying for leave. As will be recalled in
the time scale that I set out at the outset of this judgment, the position as
to whether or not a section 106 agreement was going to be demanded by the
Council was made plain to the applicant on the 22nd June. Notwithstanding that
this application for leave to move was not made until 21st September, right at
the end of the 3 month period and certainly not promptly. Mr. Lewis submits
that there was not any delay, because it would have been premature to apply for
judicial review before the outcome of negotiations with Mr. Mackie were known.
They were not known until September, when it became apparent in the applicant's
view that it was not going to be possible to reach agreement. In my view, that
is not a good reason for not applying for relief until the 21st September. I
would be the last person to suggest that the applicant should rush to apply for
judicial review if there is a real prospect that negotiations can solve the
problem. The fact remains that the planning permission was granted by the local
authority. I can see no reason why a challenge should not have been made and
negotiations conducted with Mr. Mackie in parallel with that. Mr. Mackie has
deposed to an affidavit which makes it clear that, pursuant to an auction
agreement, his company waited 3 months following the grant of planning
permission and then exercised an option at very considerable expense. Mr.
Lewis says that granting leave in the present case would not be prejudicial to
good administration so far as the Council is concerned, nor would it be
prejudicial to Mr. Mackie because all he has to do is agree an alternative
access point which would relieve the applicant of any liability to making a
ransom payment and so comprehensive development could be achieved. That seems
to me to ignore the desirability of securing early development on this site, an
important strategic site.
30.
The Council took into account the fact, as explained in the officer's
report, that it was desirable to get development under way on this site of
strategic importance. On any basis, Mr. Mackie's application for planning
permission does relate to a significant amount of the strategically important
site. Secondly, the proposition that all he has to do is agree a revised
access point which will ensure that no ransom payment had to be made by the
applicant in these proceedings shows that this application is entirely
concerned with the commercial terms on which the applicant for relief can
obtain access to the A650 junction. As I have indicated, my view is that the
Council were perfectly well entitled to leave that to negotiations between the
parties. Indeed, during the course of Mr. Lewis' submission, I posed the
question to him as to how the Council could sensibly have justified a refusal
for planning permission on appeal if Mr. Mackie had declined to enter into a
section 106 agreement. There was no technical objection to his access point.
It was physically capable of serving all the land that had to be serviced by
way of access from the A650. The only outstanding point was the terms on which
the land owner to the south of Red Hall Lane would be able to obtain access to
it. If the Council had sought to justify refusal simply to ensure that a
particular land owner would not have to pay a ransom payment, then they
themselves would have been in severe danger of costs being awarded against them
for an unnecessary inquiry, because the Inspector could take the view that that
was a matter for commercial negotiation between land owners. If the land
owners, genuinely, at the end of the day, were unable to come to terms, the
Council would always have a back-stop position of being able to make a
compulsory purchase order under the Town and Country Planning Act to secure the
development of the land, subject of course to getting suitable indemnities from
the land owner whose land would be benefitted by the compulsory purchase order.
31.
For all those reasons, I am satisfied that the grounds of challenge to this
grant of planning permission are not properly arguable. The fact that I have
spent some little time in giving my reasons for refusing leave does not imply
that the grounds are arguable. If they are arguable I am satisfied that they
are arguable to no greater an extent than set out in this judgment. For these
reasons, I am satisfied that this application for leave must be refused.
33. MR.
LEWIS: My Lord, I would seek to resist that on this basis. It is after all an
ex-parte application for leave. The Council and Mr. Mackie were notified of
it, because Your Lordship would have seen from the form 86A originally that
there was included interim relief in the form of a stay, and I think an
injunction. That was not pursued. My friend did tell me today that that had
not been brought to her notice, but Your Lordship will note that neither of the
affidavits put in, either by the Council or by Mr. Mackie, actually address the
merits of granting any form of interim relief. On that basis, I would submit
that this is a case where my learned friend need not have appeared, and on that
basis I invite Your Lordship to make no order as to costs, which would be the
usual position if I had been pursuing this as an oral application, as it were,
on my own, ex-parte.
34. MR.
JUSTICE SULLIVAN: As I understand it though, this was originally listed for
December. I think that date was vacated by agreement. The Council had made it
clear they wanted to be represented then, that they had not been notified.
35. MISS
PATERSON: That's right, My Lord. The matter was listed I think for the 10th
December. Those instructing me weren't in fact aware that proceedings had been
issued until the 8th December, and there is a letter from them to the court
which you should have on the file to that effect.
36. MR.
JUSTICE SULLIVAN: Yes. It seems to me, Mr. Lewis, that you proceeded with
this knowing that the Council were going to turn up on any basis. It's not as
if they suddenly turned up out of the blue, and you could fairly say "Good
heavens, I was going to turn up and make an unopposed application, and here
they are..."
37. MR.
LEWIS: No. In relation to that I seek to change my grounds slightly. My
learned friend is quite right to remind Your Lordship, or to clear the point up
for Your Lordship, that there was a previous vacated hearing made. The council
subsequent to the vacation of that date had the opportunity of producing
evidence. It is quite clear that Your Lordship has had the opportunity of
taking on board and taking that into accountant. Again, beyond, that My Lord,
there is no actual need - although I appreciate Your Lordship indicated in due
course (whether it was in submission or in Your Lordship's judgment) that Your
Lordship was assisted by having received my learned friend's skeleton argument.
Nonetheless, this being an ex-parte application, there was nothing there which
required their attendance, and again that is the basis on which I ask Your
Lordship to treat it as an ordinary ex-parte and make no order as to costs.
38. MR.
JUSTICE SULLIVAN: In my judgment, the Council ought to have their costs of
this hearing. I view this as not a "normal" ex-parte application. The Council
has assisted the court by producing a significant amount of evidence. It was
clearly necessary for it to do so, to set the scene properly, and I say that
with no criticism of the applicant. But it was, in reality, necessary for the
Council to produce evidence. Moreover, it has been plain for some considerable
time that if this hearing was going to proceed, it was going to proceed on an
interpartes basis, and the Council would be opposing the grant of leave. For
those reasons, the normal course should not be followed and the Council should
have its costs.