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Cite as: [1999] EWHC Admin 213

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SECRETARY OF STATE FOR ENVIRONMENT EX PARTE WEBSTER, R v. [1999] EWHC Admin 213 (8th March, 1999)



IN THE HIGH COURT OF JUSTICE CO-3609-98
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

Royal Courts of Justice
Strand
London WC2

Monday, 8th March 1999



B e f o r e:

MR. JUSTICE SULLIVAN



---------------

Regina

-v-

THE SECRETARY OF STATE FOR THE ENVIRONMENT

EX PARTE WEBSTER


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(Transcript of the stenograph notes of Smith Bernal International, 180, Fleet Street, London W2. Telephone 071-404-1400, Official Shorthand Writers to the Court.)

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MR. M. LEWIS appeared on behalf of the applicant. (Instructed by Messrs Sanderson, Hull.)

MISS PATERSON QC appeared on behalf of the respondents. (Instructed by the Treasury Solicitors.)
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JUDGMENT
(AS APPROVED BY THE COURT)
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Crown Copyright


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 Therefore, on the 1st July, an amended decision notice was issued which superceded the earlier decision notice.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:


"The UDP recognises the strategic location of this currently undeveloped land. The aim of the special policy area designation will be to acknowledge the need to retain much of the open character of the area through its significant contribution to sports facilities provisions for local schools and clubs. At the same time the importance of this area in contributing towards the B1 requirements of the plan is also recognised. The council is utilising the special policy area concept to achieve a comprehensive and balanced development which recognises the need to cater for a variety of uses which have equally wide values."

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:


"(3) the vehicular access to both the playing fields and business park will be via the new roundabout in the vicinity of Red Hall Lane intersection with the A650 Wrenthorpe bypass..... Detailed requirements will be specified in Supplementary Planning Guidance to be prepared by the Council."

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,


"Highways vehicular access to the playing field and business park to the west of A650, and the hotel/motel to the east, will be via new junction in the vicinity of Red Hall Lane intersection with the A650 Bradford bypass."

6. And then it says that the detailed design of the junction will have to take account of that.


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:


"The UDP indicated that vehicular access to both playing fields and business park would be via the new roundabout in the vicinity of Red Hall Lane intersection with the A650 bypass. Although the proposed roundabout is some distance from Red Hall Lane it is considered that the position of the new roundabout complies with the spirit and meaning of the UDP requirements. Furthermore, perhaps more importantly, the proposed roundabout will enable a direct means of vehicular access to both the business park to the west and hotel/motel to the east of the A650, which are allocated on the adopted UDP to be provided. Therefore, it is considered that in this connection the amended vehicular access complies with the UDP. Furthermore, there are no technical highway reasons to oppose the amended position of the roundabout".

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.


"It is considered that the application as now amended is not a departure from the UDP in relation to the position of the proposed roundabout on the A650. It is considered that the roundabout is in a position that will facilitate adequate and satisfactory vehicular access to be provided to the land to both the east and west of A650 within the spirit and meaning of the UDP agreement. There are no technical reasons to oppose the proposed position of the roundabout, and the landowner's request for a section 106 agreement to provide access to their land relates to a matter which in my opinion is an issue to be resolved by negotiation with all interested parties, and therefore a section 106 agreement is not considered necessary in this instance. The local planning authority's role is to ensure that the access is capable of enabling access to all parts of the site, and that the access proposed does not prejudice development of the site as a whole."

12. He then says that he has considered the papers submitted with the applicant's solicitors' letter, and says:


"Whilst the illustrative concept plan for the Snow Hill special policy area which was prepared by the Council for the UDP inquiry shows the access at Red Hall Lane, this plan was expressly stated to be illustrative and subject to applicable Unitary Development Plan policies and detailed planning inquiries. The issue of increased traffic has been carefully considered by officers as part of the TIA, and there are no reasons to oppose the application on highway grounds."

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:


"In applying the policy the planning authority will not normally be concerned with the personal circumstances of the particular applicant's planning permission. There can, however, be exceptional circumstances when it may be appropriate to do so. One does not, for example, wish to have land put in a position where it is rendered sterile because, for example, an adjoining landowner is refusing in any circumstances, or subject to wholly unreasonable conditions, to allow his land to be used as access to the appeal site."

25. He went on to say:


"In this case the position before the Inspector was that there was no evidence put before him which indicated that there had been any effort made to obtain access to the appeal site from the south."

26. The editor's comment upon that decision was:


"As Lord Wolfe indicated, it might have been different if the evidence had been put to the Inspector that the owner of the land to which access had to be obtained had completely refused or had held out for an exorbitant price."

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.


32. MISS PATERSON: My Lord, I make an application for our costs.


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.

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© 1999 Crown Copyright


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