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Neutral Citation Number: [2003] EWHC 2591 (Admin) |
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Case No: CO/2571/2003 |
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
B e f o
r
e :
THE HONOURABLE MR JUSTICE
RICHARDS
____________________
Between:
____________________
(Transcript of the Handed Down Judgment of
Smith
Bernal Wordwave Limited, 190 Fleet
Street
London
EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official
Shorthand
Writers to the Court)
____________________
Mr
Robert
McCracken QC and Ms Angela Ward (instructed by
Gavins
(
solicitors))
for the Claimant
Mr Geoffrey
Stephenson
(instructed by
London
Borough of
Haringey
Legal Department) for the Defendant
Mr Peter Goatley (instructed by B.P.E. (
Solicitors)
for the Interested Party
____________________
HTML
VERSION
OF JUDGMENT
____________________
Crown Copyright ©
Mr Justice
Richards:
- This is a claim for judicial
review
of the grant of planning permission by the
London
Borough of
Haringey
("the council") to Wolseley Centers Limited ("Wolseley") on 22
September
2000 for a development at 460 Archway
Road,
Highgate. For
reasons
explained below, the claim was lodged only on 30 May 2003, over 2½ years after the grant of planning permission. The council and Wolseley opposed permission on the ground of delay, but permission was granted by Elias J after a contested hearing in June 2003. Nevertheless delay and its effects
remain
at the heart of the case,
since
both the council and Wolseley accept that the process leading to the grant of planning permission was affected by legal error but
submit
that
relief
should
be
refused
pursuant to
s.31(6)
of the
Supreme
Court Act 1981 on grounds of
substantial
hardship or prejudice to Wolseley and detriment to good administration.
Factual background
- The
site
in question
runs
between a
railway
yard and Archway
Road
and is 0.88 hectares in area. It was previously owned by
London
Underground and leased out for use by a builders' merchant business and a
vehicle
hire and
sales
business. In 1999 ownership of the
site
passed to Wolseley, which then applied for planning permission for what is described in the grant itself as "
redevelopment
of the
site
to provide general building
supplies
warehouse,
sales
area, bag and board
store,
hire centre, plumbing and draining and
retail
bathroom equipment
showroom".
Wolseley'
s
evidence is that the
redeveloped
site
is intended to house an existing Building Center operation, together with a Timber Center, Hire Center, Plumb Center and Drainage Center. The floorspace of the proposed buildings is 2,750
sq.m.
- The claimant lives (and
runs
a
solicitor's
office) at 473 Archway
Road,
directly opposite the
southern
end of the
site.
His evidence is that he was unaware of the
application
for planning permission or of the grant of planning permission until April 2003.
- According to the council'
s
records,
a total of 94 written notices of the
application
were
sent
out in November 2000 to occupiers of properties in the area, including the claimant, and to other consultees. The council feels unable, however, to dispute the claimant'
s
evidence that he did not
receive
any
such
notice. From the claimant'
s
researches
it would appear that
some
of the notices were
sent
to non-existent addresses and that in many other cases the notices were not
received.
It is not necessary to go into the detail of this.
Suffice
it to
say
that in my
view
an attempt was made by the council to
send
notices to local
residents
but in practice, for whatever
reason,
it was not
very
successful,
though among those who did
receive
notification were the Highgate
Society
and the Highgate Conservation Area Advisory Committee, which made
representations
objecting to the proposal.
- The planning
application
was also advertised in a newspaper called the
Haringey
Independent. Unfortunately, as is now accepted by the council, the circulation of that newspaper did not include the postcode area where the
site
is
situated.
- There was no
site
notice advertising the planning
application.
- The net
result
is that there was much less awareness of the planning
application
among local
residents
than there
should
have been and than had been intended by the council.
- The planning
application
was considered and approved by a
sub-committee
of the council on 6 April 2000. The
report
to the
sub-committee
stated
that there had been 85 consultees and 1 objection. The
source
of the figure of 85 consultees is unclear - contrast the 94 written notices to which I have already
referred
- but in any event it is likely that
substantially
fewer than 85 people had actually
received
notification of the
application.
I
shall
deal later with an issue
raised
concerning the
subsequent
dismissal of the author of the
report
to the
sub-committee.
- The formal grant of planning permission was on 22
September
2000. There was
subsequently
some
discussion about the
scope
of the permission granted, which led to Wolseley giving in May 2002 a unilateral undertaking under
s.106
of the Town and Country Planning Act 1990 that the
retail
part of the development would not be used otherwise than for the
retail
sale
of a
specified
range
of goods (including products as diverse as DIY products, building materials, bedding and household textiles, audio tapes/CDs etc., and wines,
spirits
and confectionery).
- Work commenced on the
site
in August 2002, but only for a period of a week or
so
and at a time when the claimant was abroad on holiday. During that period Wolseley'
s
contractor cleared
some
trees on the
southern
part of the
site
and demolished a building described as the former Coke Office. The contractor then went into liquidation and the work ceased. The claimant did not
see
the work being carried out and did not have it brought to his attention by any of his neighbours, though the demolition of the Coke Office had been noticed by Mrs
Smith,
a lady who lived at 497 Archway
Road.
The claimant'
s
evidence is that on his
return
from holiday he noticed what looked to him like
some
pruning of the trees on the
southern
end of the
site,
but was not concerned about it
since
he thought it was normal management of the trees by
London
Underground.
- In November 2002 hoardings were erected along about 250 feet of the frontage at the northern end of the
site.
The claimant
says
that it did not give the impression of impending development works as there were none of the usual developers' paraphernalia
such
as
safety
notices and details of architects and contractors.
- In March 2003 Wolesley
selected
a
second
contractor, Brennan Limited, to carry out the work of
redevelopment.
Brennan arranged for an excavator to be brought onto the
site
on or about 13 March for the purpose of digging trial pits in order to determine ground conditions. Wolseley'
s
evidence is that the trial pits were dug in the morning and were back-filled by lunchtime.
Referring
to what must have been the
same
occasion, the claimant
says
that he
saw
an articulated digger working on the
site
directly opposite his home,
removing
trees and clearing the
site.
He immediately contacted the council'
s
planning department by telephone. He was told to put his complaint in writing, which he did. He
received
an acknowledgement and then, on 27 March, a letter
stating
that no
record
of the grant of planning permission for works on the
site
had been found. This was followed by a letter from the council dated 7 April
stating
that a "
valid"
planning permission had in fact been granted to develop the
site.
That was the first time the claimant was aware of the planning permission or the
application
for it.
- Over the next few weeks the claimant
sought
to ascertain in detail the circumstances in which planning permission had been granted. He was in contact with the council by telephone and in correspondence, and he attended the council'
s
offices to inspect the planning file and to meet a council officer. He made inquiries about the circulation of the
Haringey
Independent in which the
relevant
advertisement had been placed. He carried out a
survey
of the addresses to which, according to the council'
s
records,
notices of the
application
had been
sent.
He made detailed inquiries of interested parties who had apparently
received
notice of the
application.
He
raised
his concerns about the council'
s
failure to comply with
relevant
procedural
requirements
and, having failed to obtain a
satisfactory
response,
on 14 and 19 May he
sent
letters before claim.
- During the
same
period the claimant also contacted Wolseley. On 15 April he
spoke
by telephone to Mr Mason, Wolseley'
s
development manager. According to Mr Mason, the claimant "telephoned … to
say
that he had good cause to question the
validity
of the planning permission granted by
Haringey
Council in
September
2000 and
requested
a copy of the plan
showing
the development". Mr Mason
sent
a copy of the plan the following day. On 30 April the claimant wrote to Wolseley'
s
lawyers to confirm a telephone conversation on the
same
day in which "we informed you that we have a good case for challenging the grant of planning permission". The letter gave details of counsel who had been instructed and whose advice was
said
to be expected
shortly.
It
stated
that "you
should
bear in mind that if we are forced to
stop
this development through the Courts, your client will face adverse media coverage", and concluded: "Accordingly, we give your client the opportunity to consider their position with a
view
to their
stopping
work immediately".
- Wolseley did not
stop
the work. I
shall
have to deal later with the
various
implications of this.
- The claimant lodged the claim for judicial
review
on 30 May 2003. He did not
seek
interim
relief.
The grant of permission by Elias J was on 23 June. The
substantive
hearing was expedited and was listed for mid-October.
- Following Elias J'
s
grant of permission to apply for judicial
review,
Wolseley
submitted
a fresh
application
for planning permission, materially identical to the permission already granted. It appeared at one time that a decision on the fresh planning
application
might be
reached
by the planning
sub-committee
before the
substantive
hearing of the judicial
review
application.
On that basis the council applied for a 3 month
stay
of the judicial
review
proceedings. This was
rejected
by Collins J on 6 October, largely because by that time it had become clear that a decision on the fresh planning
application
would not be taken until December 2003 or January 2004. The current position is that the fresh planning
application
is likely to be considered in a development control forum (a non-
statutory
procedure triggered by a petition of at least 25 objectors and involving a meeting between objectors, developer and council officers) before any decision is taken on it by the
relevant
sub-committee.
In the circumstances it is clear that the challenge to the existing planning permission must be
resolved
without waiting for a decision by the council on the fresh
application.
Issues
- Although there is only limited dispute about them, I
shall
deal first with the grounds of challenge to the grant of planning permission, namely (i) failure to comply with the publicity
requirements
in the Town and Country Planning (General Development Procedure) Order 1995 and (ii) failure to comply with the
requirement
to consider whether the
application
required
an environmental
statement
(an EIA) pursuant to the Town and Country Planning (Environmental Impact Assessment) (England and Wales)
Regulations
1999. Mr McCracken'
s
skeleton
argument
referred
to a third ground of complaint, namely that the terms of the grant of planning permission were
vague,
ambiguous and
so
uncertain as to be unlawful; but this was not part of the pleaded claim and, following an early warning
shot
from Mr
Stephenson,
was not pursued in this form in Mr McCracken'
s
oral
submissions.
- The
relief
sought
by the claimant is the quashing of the planning permission, alternatively
some
form of declaratory
relief
that, as it was put, would not affect the
validity
of the planning permission but might provide a basis for a claim in damages and would provide the claimant with
some
satisfaction.
No damages claim is pursued in the present proceedings.
- It will be necessary to consider the principles governing the exercise of the court'
s
discretion with
regard
to the grant or withholding of
relief
in a case where there has been delay in bringing the challenge, and then to consider the individual factors
relevant
to the exercise of that discretion on the facts of the present case.
Such
factors include (i) the nature of the legal errors and the conduct of the council, (ii) the period of delay and the conduct of the claimant, (iii) hardship or prejudice to Wolseley if
relief
is granted, (iv) other issues concerning the conduct of Wolseley, and (
v)
detriment to good administration if
relief
is granted. Brief consideration must also be given to arguments
raised
under the Human
Rights
Act 1998.
- Finally I
shall
have to balance the
various
factors and
reach
a considered judgment on how the court'
s
discretion
should
be exercised.
Failure to comply with publicity
requirements
- Article 8(4) of the Town and Country Planning (General Development Procedure) Order 1995 provides:
"In the case of an
application
for planning permission which is not a paragraph (2)
application,
if the development proposed is a major development the
application
shall
be publicised by giving
requisite
notice -
(a) (i) by
site
display in at least one place on or near the land to which the
application
relates
for not less than 21 days, or
(ii) by
serving
the notice on any adjoining owner or occupier,
and
(b) by local advertisement."
- Mr McCracken does not pursue for present purposes a contention that this was a paragraph (2)
application.
The development proposed was a "major development" by
reason
of the proposed floorspace. Article 8(4) can therefore be treated as the provision with which the council had to comply by way of publicity for the
application.
- It is common ground that there was a failure to comply with article 8(4), though there is a dispute about the extent of the failure. The council accepts that it failed to comply with (b) in that, although a notice was placed in the
Haringey
Independent, that newspaper did not circulate in the area of the
site.
It
submits,
however, that it complied with (a), in that it
served
notice in accordance with the alternative in (a)(ii) on the adjoining owners and occupiers - indeed it went beyond that, by
sending
written notices to the occupiers of properties in the area even though, like the claimant, they were not
strictly
"adjoining" the
application
site.
The claimant, on the other hand, contends that there was a failure to comply with (a) as well.
- The claimant'
s
case on (a) is that the council had a discretion whether to proceed by way of displaying a
site
notice or by way of
serving
notices on adjoining owners or occupiers. Any
statutory
discretion has to be exercised in accordance with the
spirit
and purpose of the enabling
statute
and in particular for
reasons
relevant
to the achievement of the
statutory
purpose:
R
v.
Tower Hamlets LBC, ex p. Chetnik [1988] 1 AC 858 at 872-873. The purpose of the publicity provisions is to
secure
notification of persons likely to be interested in the planning
application.
Consideration must therefore be given to whether that purpose is best achieved in an individual case by
site
notices or by the
service
of notices on adjoining owners and occupiers. In an urban context the former may be more appropriate, given that those likely to be interested will extend beyond those immediately adjoining the
site.
In the present case, however, the evidence is that the council
simply
followed its practice of
serving
notices on adjoining owners and occupiers
rather
than using
site
notices. Accordingly there was a failure to give proper consideration to the exercise of the
statutory
discretion.
- I have
substantial
doubts as to whether article 8(4)(a) imposes on a local planning authority an obligation to consider which of the two methods is best calculated to give notice of the
application
to those likely to be interested in the
application.
On the face of it, either of those methods is equally
valid
in every case: the
relevant
judgment has already been made by the
Secretary
of
State,
who, in making the 1995 Order, has formed the
view
that the purpose of ensuring that
sufficient
notice is given will be
sufficiently
achieved by a combination of (a) either of those methods plus (b) local advertisement.
- Neither Mr
Stephenson
for the council, however, nor Mr Goatley for Wolseley has advanced that line of argument. Mr
Stephenson's
submission,
adopted by Mr Goatley, is
simply
that the council'
s
practice, which it followed in this case, was to
serve
notices on adjoining owners and occupiers
rather
than to use
site
notices, and that the adoption of
such
a practice has not been
shown
to be unlawful.
- I am inclined to accept that, if and to the extent that it is incumbent on a local planning authority to make a discretionary judgment between the two alternatives in article 8(4)(a), it is permissible to decide to adopt a general practice
rather
than to assess each individual case
separately,
subject
always to a willingness to consider any
reasons
advanced for departing from the practice in an individual case. It appears that the council had a practice of
serving
notices on adjoining owners and occupiers, and there is no
suggestion
that any
reasons
were advanced for departing from the practice in this case.
So
I would
reject
the claimant'
s
case based on a failure to consider which method to use in the individual case. There
still
remains
a question whether the practice itself was lawful. The difficulty about that issue is the lack of evidence about the adoption of the practice or the
reasons
for it. The court has
so
little to go on that I would if necessary fall back on acceptance of Mr
Stephenson's
submission
that the claimant has failed to establish that the practice followed in this case was unlawful.
- I do not consider, however, that a decision on the disputed issue under article 8(4)(a) is
strictly
necessary. In circumstances where the claimant did not otherwise
receive
notification of the planning
application,
the admitted failure to comply with article 8(4)(b) would have been a
sufficient
reason
for quashing the grant of planning permission if there had been a timely challenge. If there was a failure to comply with article 8(4)(a) as well, it would be a point to put in the balance when considering the exercise of discretion to grant or withhold
relief;
but in my judgment it would not carry much additional weight and would not materially affect the outcome of the balancing exercise in the circumstances of the case as a whole. I therefore propose to
say
no more about it.
- I
should
make clear that, in concluding that the failure to comply with article 8(4)(b) would have been a
sufficient
reason
for quashing the grant of planning permission, I am
satisfied
that the claimant was
substantially
prejudiced by the failure. He would have been in a position to make
representations
of
substance
in opposition to the proposed development, in
respect
of matters
such
as loss of amenity,
visual
intrusion, type of use (e.g. the
range
of goods permitted to be
sold
by
retail),
hours of operation, traffic and car parking
spaces.
Such
representations
would have gone both to the principle of planning permission and to the conditions to be imposed if permission were granted. They might not have been
successful,
but they were of
sufficient
substance
that he could legitimately complain of the denial of an opportunity to make them. The case for
relief
would have been
reinforced
by the fact that a
substantial
number of other
residents
would appear to have been unaware of the planning
application
and would also have objected to it if they had been notified.
Non-compliance with EIA
requirements
- The Town and Country Planning (Environmental Impact Assessment) (England and Wales)
Regulations
1999, implementing Council Directive 85/337/EEC, make provision in
reg.4
for a local planning authority to give a "
screening
opinion" as to whether a proposed development is EIA development, i.e. a development in
respect
of which an environmental
statement
is
required
because it is (a) a
Schedule
1 development or (b) a
Schedule
2 development likely to have
significant
effects on the environment by
virtue
of factors
such
as its nature,
size
or location.
Requests
for
screening
opinions are governed by
reg.5.
Where a
request
is made under
reg.5(1),
an authority is
required
by
reg.5(4)
to adopt a
screening
opinion within three weeks of
receipt
of the
request
or
such
longer period as may be agreed with the person making the
request.
- The
reg.5
procedures can also be engaged where an
application
for planning permission is made without an environmental
statement.
Reg.7
provides:
"(1) Where it appears to the
relevant
planning authority that -
(a) an
application
for planning permission which is before them for determination is a
Schedule
1
application
or
Schedule
2
application;
and
(b) the development in question has not been the
subject
of a
screening
opinion or
screening
direction; and
(c) the
application
is not accompanied by a
statement
referred
to by the
applicant
as an environmental
statement
for the purposes of these
Regulations,
paragraphs (3) and (4) of
regulation
5
shall
apply as if the
receipt
or lodging of the
application
were a
request
made under
regulation
5(1)."
- It is common ground that the planning
application
in this case was a
Schedule
2
application
(as an urban development project exceeding 0.5 hectare, within paragraph 10(b) of
Schedule
2), that there had been no
screening
opinion or direction, and that the
application
was not accompanied by an environmental
statement.
The effect of
reg.7(1)
read
with
reg.5(4)
was therefore to
require
the council to adopt a
screening
opinion, which in turn
required
it to consider whether the development was likely to have
significant
effects on the environment by
virtue
of factors
such
as its nature,
size
or location. There was an admitted failure by the council to consider that question.
- Had that failure to comply with the EIA
regulations
been
raised
in a timely challenge, it would have led inevitably to the quashing of the planning permission in accordance with the principles laid down in Berkeley
v.
Secretary
of
State
for the Environment [2001] 2 AC 603. The evidence of Mr Tomkins, the council'
s
Development Control Manager (West), includes an expression of
view
that had the matter been considered properly an environmental
statement
would not have been
required
because there was no overall adverse environmental impact on this previously developed
site.
I am in no position to determine whether that is correct, but in any event it is irrelevant
since
Berkeley makes clear that individuals affected by the development have a directly enforceable
right
to have the need for an environmental
statement
considered before the grant of planning permission and that, where the question has not been considered, it is not normally permissible for the court to withhold
relief
in the exercise of its discretion.
- As explained below, however, the position with
regard
to the court'
s
discretion is materially different where there has been undue delay.
Delay: general principles
Section
31 of the
Supreme
Court Act 1981 provides:
"(6) Where the High Court considers that there has been undue delay in making an
application
for judicial
review,
the court may
refuse
to grant –
(a) leave for the making of the
application,
or
(b) any
relief
sought
on the
application,
if it considers that the granting of the
relief
sought
would be likely to cause
substantial
hardship to, or
substantially
prejudice the
rights
of, any person or would be detrimental to good administration.
(7)
Subsection
(6) is without prejudice to any enactment or
rule
of court which has the effect of limiting the time within which an
application
for judicial
review
may be made."
- The effect of those provisions was explained in the
speech
of Lord Goff in
R
v.
Dairy Produce Quota Tribunal, ex p. Caswell [1990] 2 AC 738 at 747B-C:
"It follows that, when an
application
for leave to apply is not made promptly and in any event within three months, the court may
refuse
leave on the ground of delay unless it considers that there is good
reason
for extending the period; but, even if it considers that there is
such
good
reason,
it may
still
refuse
leave (or, where leave has been granted,
substantive
relief)
if in its opinion the granting of the
relief
sought
would be likely to cause hardship or prejudice (as
specified
in
section
31(6)) or would be detrimental to good administration."
- In the present case there was plainly undue delay. Elias J
so
found on the hearing of the permission
application,
I do not understand it to be in dispute before me, and in any event I am
satisfied
of the point. The central question for me is whether, although there were errors in the process leading to the grant of the planning permission, I
should
nonetheless
refuse
relief
in the exercise of my discretion and in particular on the grounds of hardship, prejudice or detriment to good administration as
referred
to in
s.31(6).
Although questions of hardship, prejudice and detriment to good administration were considered by Elias J at the permission
stage,
I need to form my own assessment on the basis of the evidence as a whole and in the different context of the grant or withholding of
relief.
- I have mentioned that on the basis of the decision in Berkeley the court would normally have little, if any, discretion to withhold
relief
where planning permission has been granted in breach of the EIA
requirements.
Mr McCracken accepts that the full force of the
strict
approach laid down in Berkeley does not apply in a case of undue delay, though his precise position on this is not entirely clear to me. He does not contend that the court'
s
discretion to withhold
relief
pursuant to
s.31(6)
of the 1981 Act is incompatible with general principles of EU law. At times he appeared to accept that the court does have a
real
discretion in this case. But he also
suggested
that the
refusal
of
relief
would deny to the claimant an effective
remedy
for breach of his
rights
under the EIA directive and would thereby conflict with the obligation of the court to ensure the effective protection of
rights
under EU law. The only authority he
referred
to on this
subject
was Amministrazione delle Finanze dello
Stato
v.
SpA
San
Giorgio [1983] ECR 3595, and even then it was the briefest of
references
to paras 17-18 of the judgment, a passage which I find of no
real
assistance.
- For my part, I
see
no
reason
in principle why the exercise of discretion in accordance with
s.31(6)
of the 1981 Act
should
give
rise
to a problem under EU law. To entertain a claim outside the normal time limit but at the
same
time to take into account the consequences of that delay for third parties and good administration does not
render
it impossible or excessively difficult to enforce EU
rights,
or involve any denial of effective protection, or otherwise offend general principles of EU law. For those
reasons,
and in the absence of any
reasoned
argument on this issue, I propose to approach the
application
of
s.31(6)
of the 1981 Act in a conventional way.
The nature of the legal errors and the conduct of the council
- The publicity
requirements
of the 1995 Order in
relation
to planning
applications
are of obvious importance, and the failure to comply with them caused
substantial
prejudice to the claimant. The
requirements
of the EIA
regulations
are likewise of importance, as emphasised in Berkeley. Accordingly, if
relief
is to be
refused
on grounds of delay, factors of considerable weight have to be placed in the other
side
of the balance.
- Apart from emphasising the importance of the errors it made, Mr McCracken makes
various
other criticisms of the council'
s
conduct. In my judgment none of them advances the claimant'
s
case to any material extent. In particular, he
seeks
to make much of the fact that the planning officer who dealt with the planning
application
and who prepared the
report
considered by the
sub-committee
in April 2000 was
subsequently
dismissed for misconduct. The council
states,
however, that the misconduct
related
to a conflict of interest in an unrelated case and did not touch on the planning
application
relevant
to the present case. There is no basis for going behind that
statement.
For that
reason,
and because it was unnecessary for the fair determination of this case, I
refused
a
very
late
application,
made by Mr McCracken in the course of his
substantive
submissions,
for disclosure of the file
relating
to the officer'
s
misconduct. In my
view
such
misconduct cannot provide a proper basis for adverse inferences in
relation
to the council'
s
handling of the planning
application
in issue in this case. Further, although Mr McCracken has also drawn attention to the fact that the dismissal for misconduct was not disclosed to the court by the council in Mr Tomkins'
s
first witness
statement,
in which it was
said
that the individual concerned had "departed to travel
round
the world" and was not now contactable, I
reject
any
suggestion
that the council was deliberately misleading the court or that this
should
count against the council when considering the question of
relief.
- Nor do I think that anything turns on the council'
s
shifting
stance
in
response
to the claimant'
s
initial inquiries and then his threat to apply for judicial
review
and his commencement of proceedings: for example, the council'
s
initial denial that a planning permission existed, followed by its discovery that there was a planning permission; or the gradual change of position
regarding
the adequacy of the newspaper advertisement or the
receipt
of a written notice by the claimant himself. Points can certainly be made about inefficiency and a
reluctance
to accept that errors had occurred, though the council'
s
position was made more difficult by the fact that the
relevant
planning officer had been dismissed and most of the information had to be derived from perusal of the files. To my mind, however, what happened at this
stage
does not materially affect the exercise of discretion with
regard
to
relief.
The period of delay and the conduct of the claimant
- The delay in this case, a period of 32 months from the grant of planning permission to the commencement of proceedings, was on any
view
extremely long. On the other hand, it must be considered in conjunction with the explanation for the delay, namely the failure to comply with the publicity
requirements
and the claimant'
s
lack of knowledge of the planning
application
or of the grant of planning permission. The claimant cannot fairly be criticised for failing to take action before he knew that there was anything to take action about.
- Mr Goatley has
submitted
on behalf of Wolseley that there were
sufficient
matters, individually or collectively, to put a
reasonable
person on inquiry long before mid-April 2003 when the claimant
saw
the activities on
site
which prompted him to act. There was the clearance of trees and demolition of the Coke Office building in August 2002, and the erection of a hoarding in November 2002. In my
recital
of the factual background I have
referred
to those matters and to the explanations given by the claimant (though it is
right
to note that he does not deal expressly with the demolition of the Coke Office building, which was noticed by Mrs
Smith
who lived opposite that building). In my judgment the claimant'
s
failure to appreciate a possible change in the planning
status
of the
site
or to act earlier than he did was understandable in the circumstances and
should
not count against him.
- Once the claimant did
start
to make inquiries, he acted with all
reasonable
speed.
It was appropriate to make detailed investigations and to give careful consideration to the position before commencing legal proceedings in
respect
of a planning permission granted
so
long ago.
- Accordingly, leaving aside the
significance
of the delay itself, I
see
nothing in the claimant'
s
conduct to put in the balance against the grant of
relief.
Hardship or prejudice to Wolseley
- The central issue in the case is the hardship that would be
suffered
by Wolseley, or the prejudice that would be caused to Wolseley'
s
interests (no distinction has been made in argument between hardship and prejudice), if the planning permission were quashed. Evidence on that is given in the witness
statements
of Mr Mason, Wolseley'
s
development manager. In his first witness
statement,
made for the purposes of the permission hearing before Elias J, he
refers
to his own faxed letter dated 1 April 2003 appointing Brennan as contractor for the works on
site
(in
substitution
for the contractor which had gone into liquidation in August 2002). The letter
states:
"… I am pleased to inform you that it is this company'
s
intention to enter into a contract with Brennan Limited to complete the works for the above development. The Contract will be based on your Outline Proposal Presentation …. The Contract
Sum
and Contractors Proposals will be as outlined in this document, the Fixed Price Contract being £1,850,000 (+
VAT)
….
The Contract Programme will also be as detailed in the Outline Proposal Document, with works commencing 7th April 2003 and completing 37 calendar weeks thereafter. You
should
commence the detailed design works and the placing of
subcontracts
and ordering materials to facilitate the planned
start
on-
site.
Following
successful
negotiations we intend to
send
you a formal contract based on the terms and conditions of the JCT98 with Contractors Design …
We
reserve
the
right
to withdraw the authority contained in this letter at any time and for any
reason.
If we do
so,
and the contract is not
signed
for any
reason
other than your failure to comply with the conditions
set
out in the tender documentation, then the company will
reimburse
you the
reasonable
and agreed costs wholly and necessarily incurred by you in properly proceeding with the works following your
receipt
of this letter."
- The programme of works was designed to be carried out in two phases, with Phase One due for completion by the end of August 2003 and Phase Two by the end of December 2003. Brennan commenced work on
site
on 7 April 2003 and work has continued on
site
since
then in line with the agreed programme,
save
that the works were approximately 6 weeks behind
schedule
as at the date of Mr Mason'
s
third witness
statement
on 16 October.
- Although the letter of 1 April
refers
to the intention to conclude a formal contract, none has yet been
signed.
In his
second
witness
statement,
dated 25 July 2003, Mr Mason explained that the parties were nevertheless proceeding on the basis that the contract was governed by the terms and conditions
referred
to in the letter of 1 April.
- There was in any event a plain commitment on the part of Wolseley in
respect
of work done and materials ordered by Brennan in accordance with the terms of the letter of 1 April, and it is clear that termination of the works at any time would have led, or would now lead, to a financial claim by Brennan against Wolseley. It is neither necessary nor appropriate in these proceedings to determine the precise basis of
such
a claim - whether quantum meruit as
submitted
by Mr McCracken, or a
simple
claim for breach of contract or even a tort-based claim as Mr Goatley
suggested
by way of additional possibilities.
- Mr Mason
says
in his first witness
statement
that the position as at 11 June 2003 (this is the first date for which figures are given) was that the
sum
of £445,000 had been paid under
stage
payments, together with a further £8,000 in
respect
of professional fees. If Wolseley had terminated the "contract", an additional figure in the
region
of £650,000 would have been payable in
respect
of goods ordered. There might also have been a claim for loss of profits, but the terms of the letter of 1 April would have made
such
a claim
very
difficult to
sustain
and I
shall
discount it for the purposes of my analysis.
- In his
second
witness
statement
Mr Mason
states
that the position as at 23 July 2003 was that the
sum
of £584,250 plus
VAT
had been paid to the contractor and a further
sum
of £213,973 had been
valued
by the contractor and agreed by the architect.
- In his third witness
statement
Mr Mason
refers
to a letter dated 15 October 2003 in which the contractor indicated that an interim
valuation
would
soon
be issued in the
sum
of £1,426,116 plus
VAT
and that it was currently committed, in terms of orders, to a figure of £1.8 million overall. The
sums
will no doubt have become larger by the date when this judgment is handed down.
- Thus the position is that if the court quashes the planning permission, Wolseley will be at
risk
in
respect
of a total
sum
approaching £2 million for work carried out and materials ordered in pursuance of an apparently
valid
planning permission. Wolseley'
s
submission
is that this amounts to hardship or prejudice amply
sufficient
to justify the withholding of
relief.
- The claimant
seeks
to meet that case, or to
reduce
its force, in a number of ways.
- First, Mr McCraken
submits
that the court
should
confine its attention to loss that would have been incurred by Wolseley if it had terminated the works on 15 April (the date of the claimant'
s
first contact by telephone with Mr Mason), alternatively 30 April (the date of the claimant'
s
first letter to Wolseley), alternatively 30 May (the date when the claim for judicial
review
was lodged). Wolseley ought to have
stopped
the works at one or other of those dates in the light of the claimant'
s
action in drawing attention to the invalidity of the planning permission and threatening and then commencing the claim for judicial
review.
Mr McCracken complains about the absence of information about the costs that would have been incurred as at those
various
dates; but
since
he articulated these
specific
alternative dates only in his oral
submissions
rather
than in the claim form or
skeleton
argument,
such
a complaint cannot fairly be made. What can be
said
is that the costs would plainly have been lower than as at 11 June 2003, the first date for which detailed information is available, but would
still
have been large
sums.
Subject
to later consideration of a
separate
point that the works were carried out in breach of condition and therefore unlawfully, I take the
view
that it was
reasonable
for Wolseley not to
stop
the works, even though it can be characterised as having taken a calculated commercial
risk
in proceeding as it did. It had an apparently
valid
planning permission. The time limit for a legal challenge to that permission had expired well over 2 years previously. It had had one false
start
in August 2002 with the contractor which went into liquidation. It had then entered into a legal commitment with Brennan on 1 April 2003 which, whatever its precise analysis, would expose it to a
substantial
claim if the works were
stopped.
In those circumstances I do not think that a complaint about the
validity
of the permission or the threat of proceedings to challenge it were
sufficient
to make it unreasonable to continue with the works. No doubt contractors are faced not infrequently with complaints about developments that do not mature into actual challenges. In the present case, moreover, the claimant'
s
own explanation for the time
spent
in April and May before a claim for judicial
review
was lodged is that, especially in
view
of the lapse of time
since
the grant of planning permission, it was necessary to carry out detailed investigations and give careful consideration to whether a claim was justified. Wolseley cannot fairly be criticised for carrying on with the works while the claimant was considering his position.
- The lodging of the claim for judicial
review
made Wolseley'
s
position more problematic. There was then a more clearly defined
risk
that the planning permission would be quashed with the
result
that any work done under it would be unlawful. On the other hand, Wolseley had
substantial
grounds for
resisting
the grant of permission to apply for judicial
review
and thereafter, when permission was granted by Elias J on 23 June, for
resisting
the grant of
relief.
At no time did the claimant
seek
an injunction to prevent the continuation of the works. This was entirely understandable, given that he would have been
required
to give a cross-undertaking in damages and the
sums
involved were
very
large. But the absence of a cross-undertaking meant that any loss arising out of the cessation of the works would fall on Wolseley alone. Taking all those matters into account, it was in my
view
not unreasonable of Wolseley to carry on with the works even after the commencement of proceedings.
- It follows that I
reject
the claimant'
s
submission
that the costs incurred
since,
at the latest, the date when the claim for judicial
review
was lodged
should
be left out of account when considering the hardship or prejudice that Wolseley would
suffer
if the planning permission were now quashed. But even if I did confine my attention to the costs incurred as at the date when the claim for judicial
review
was commenced, the
sums
would
still
be large (precise figures are not given, but the costs as at 11 June are indicative) and the difference would not in my
view
affect the way in which the balance came down.
- The
second
main point that the claimant makes about Wolseley'
s
case on hardship and prejudice is that Wolseley might in practice
suffer
no loss, or a loss far less than the cost of the works undertaken, even if the planning permission were quashed. That is because (i) Wolseley might
still
be granted planning permission on its fresh
application
and (ii) enforcement action might
require
steps
other than complete demolition and
removal
of the works undertaken.
- In my
view
the fresh
application
for planning permission cannot assist the claimant. The claimant is one of a
substantial
number of objectors who oppose the grant of planning permission. There is opposition to the development as a whole, not just to limited aspects of it. I cannot assess whether permission is likely to be granted, whether by the council or by the
Secretary
of
State
on appeal. In any event, if permission were likely to be granted, that might be thought to weaken
rather
than
strengthen
the case for quashing the existing permission. I must also take account of the evidence that Wolseley would have to incur
substantial
(though unquantified)
retendering
costs if it were
required
to
stop
the works now, on the quashing of the existing permission, but were then able to proceed with the balance of the works on the grant of permission on the fresh
application.
- Nor does the point on enforcement action avail the claimant. It would be a matter of judgment for the council how to proceed with
regard
to enforcement. The powers conferred by
s.173
of the Town and Country Planning Act 1990 would give it considerable flexibility. It is possible that
something
less, even far less, than demolition and
removal
of the entire development would be
required.
But all this is
speculative
and it is not possible to form any measured assessment of the actual outcome. The fact is that if the planning permission were quashed and no new permission were forthcoming, the entire development would be unlawful and Wolseley would be at
risk
of being
required
to demolish and
remove
it all. It is a
risk
which cannot be dismissed as insignificant.
- A third point advanced by the claimant in
relation
to the financial consequences for Wolseley is that it would have a claim in negligence against the council in
respect
of any financial loss that it
suffered
as a
result
of the council'
s
non-compliance with the publicity
requirements
and EIA
regulations.
I accept that Wolseley might have
such
a claim, but its
strength
is not
something
that has been investigated in any detail before me and I do not think that I
should
attach much weight to the
speculative
possibility of Wolseley
recouping
its losses from the council.
- In addition to the above matters, the claimant
seeks
to counter the force of Wolseley'
s
case on hardship or prejudice by further
submissions
concerning Wolseley'
s
conduct. I think it more convenient to consider those
submissions
under a
separate
heading.
Wolseley'
s
conduct
- The claimant contends that (i) Wolseley was the author of its own misfortune by failing to check on whether the council complied with the publicity
requirements
and the EIA
requirements,
and (ii) Wolseley has acted unlawfully in carrying out the works in breach of certain of the conditions of the planning permission. Both matters, it is
submitted,
should
weigh heavily in the balance against the withholding of
relief
on grounds of hardship and prejudice to Wolseley.
- As to the first matter, Mr McCracken
submits
that Wolseley, a
substantial
business with professional advisers,
should
have taken
steps
to ensure that the council had complied with the
relevant
requirements.
This would have been an elementary precaution, given the
risks
to Wolseley if the council fell into error. It would have been
simple
to check whether a
site
notice had been displayed (i.e. the form of publicity which the claimant
says
ought to have been used) and whether a
screening
opinion had been placed on the
register
(as
should
have been done if one had been adopted). Having failed to take
such
steps,
Wolseley
should
not be allowed to
rely
on hardship or prejudice
suffered
by its
reliance
on a planning permission that was granted in non-compliance with the
relevant
requirements
and was therefore unlawful.
- If that argument were accepted, it
seems
to me that it would be tantamount to
saying
that a developer is under an obligation to monitor the lawfulness of the
steps
taken by a local planning authority at each
stage
of its consideration of a planning
application.
In my judgment it would be wrong to go down that line. It is not warranted by the legislative
scheme,
which places the
relevant
responsibilities
on the local planning authority; and it would give
rise
to practical difficulties if
applicants
were
required
at each
stage
to check on the authority'
s
discharge of its
responsibilities.
Applicants
for planning permission are entitled to
rely
on the local planning authority to discharge the
responsibilities
placed upon it. They
should
not be held accountable for the authority'
s
failure to comply with
relevant
requirements,
at least where, as here, they cannot be
said
to have caused or contributed to that failure by their own conduct. In that
respect
I
see
no distinction of principle between a private individual acting for himself and a
substantial
developer with professional advisers.
- The
second
point to be considered under this heading concerns Wolseley'
s
failure to comply with the conditions of the existing planning permission. It is common ground that
some
of those conditions had not been complied with as they
should
have been before commencement of the works, and that
some
have not been complied with even now. It follows,
submits
Mr McCracken, that Wolseley has acted unlawfully in carrying out the works and does not come to the court with "clean hands"; and although this is not
relied
on as an automatic bar to Wolseley'
s
reliance
on hardship and prejudice, it is
said
that it
should
weigh heavily against Wolseley in a case where Wolseley is
seeking
an exercise of discretion in its favour.
- The principal conditions
relied
on are these:
"3.
Samples
of all materials to be used for the external
surfaces
of the development
shall
be
submitted
to, and approved in writing by, the Local Planning Authority before any development is commenced ….
5. Notwithstanding the details of landscaping
referred
to in the
application,
a
scheme
for the landscaping and treatment of the
surroundings
of the proposed development to include detailed drawings of:
a. those existing trees to be
retained
b. those existing trees to be
removed
c. those existing trees which
require
thinning, pruning, pollarding or lopping as a
result
of this consent. All
such
work to be agreed with the Council'
s
Arboriculturalist
d. those new trees and
shrubs
to be planted together with a
schedule
of
species
shall
be
submitted
to, and approved in writing by, the Local Planning Authority prior to the commencement of the development ….
6. Details of a
scheme
depicting those areas to be treated by means of hard landscaping
shall
be
submitted
to, approved in writing by, and implemented in accordance with the approved details ….
7. The existing trees on the
site
shall
not be lopped, felled or otherwise affected in any way … without the prior written permission of the Local Planning Authority ….
10. Details of the proposed foundations in connection with the development hereby approved and any excavation for
services
shall
be agreed with the Local Planning Authority prior to the commencement of the building works."
- It appears that none of those conditions had been fulfilled at the date of commencement of the works or indeed when the works were continued following the lodging of the claim for judicial
review.
The matters were the
subject
of discussion but nothing had been finalised. Written confirmation of the acceptability of materials under condition 3 was given only on 12 August 2003. Drawings
relating
to condition 5 were
still
being considered on 16 October, the date of Mr Mason'
s
most
recent
witness
statement.
A
supplementary
letter in
respect
of condition 6 was
still
outstanding as at that date. There had been an admitted failure to comply with condition 7, in that an area of
silver
birches on the
southern
part of the
site
had been felled before the commencement of the main works and without prior approval (though it would
seem
that their
removal
had been
shown
on the drawings); and there had been no formal compliance with the condition as at 16 October, though the evidence is that the position with
regard
to
various
trees that
remained
on
site
had been discussed and agreed with the council'
s
arboriculturalist on
site
in May. Certain details under condition 10 were also
still
outstanding as at 16 October.
- It is
right
to note that the felling of trees without prior approval was one of the matters of particular concern to the claimant, and that the need for conditions
requiring
the implementation of
strict
landscaping and tree planting
schemes
had been highlighted in the officer'
s
report
to the
sub-committee
which granted the planning permission in April 2000.
- What is the consequence of those failures to comply with conditions prior to the commencement of the works? Technically it
rendered
the works unlawful and open to enforcement action. For the council and Wolseley, however, Mr
Stephenson
and Mr Goatley
submit
that the court
should
have
regard
to the
realities
of the matter. Developers not infrequently commence works without full compliance with preconditions, whether through mistake, misunderstanding or calculated commercial decision. The local planning authority is
responsible
for monitoring the
situation
and deciding whether to use the enforcement powers available to it. In this case the council, although annoyed that prior approval had not been
sought
for the felling of trees on the
southern
part of the
site,
has not been unduly concerned with the
situation
overall and has not
seen
fit to intervene to
stop
the works. Discussions have continued over compliance with the
substance
of the conditions and there is no
reason
to doubt that there will be a
satisfactory
resolution
of the outstanding issues.
- It is further
submitted
on behalf of the council and Wolseley that, although the authorities establish the principle that operations carried out in breach of condition cannot be
relied
on as a lawful commencement of the development and can be enforced against, they also indicate the need for a degree of
realism.
Thus, the principle must be applied with common
sense
and with due
regard
to the facts of the particular,
so
that there may be a finding of lawful commencement where the
substance
of a condition has been complied with even if there has been a technical failing:
R
v.
Flintshire County Council, ex p.
Somerfield
Stores
Ltd [1998] PLCR 336 at 351F-352. And if enforcement action is taken, when the merits of the enforcement proceedings come to be considered it is necessary to take into account the
situation
as it exists at that time and, in particular, whether or not at that time any approval
required
by condition has been obtained: FG Whitley &
Sons
v.
Secretary
of
State
for Wales (1992) 64 P&CR 296.
- I have not found it easy to decide, in the light of those
rival
submissions,
what importance to attach to the fact that the works were undertaken here in breach of the conditions of the planning permission and therefore unlawfully. It undermines Wolseley'
s
argument that it acted lawfully throughout, in implementation of an apparently lawful planning permission, and it puts Wolseley in a generally less attractive position when
seeking
an exercise of discretion in its favour. On the other hand, I think it
right
to take account of the fact that what has happened is not exceptional in practice and that the enforcement authority, the council, has not
seen
fit to intervene. Moreover the indications are that the
required
approvals, if not already now given, will be forthcoming before long end, as a
result
of continuing discussion over the details.
So
the breaches of condition
relate
essentially to timing
rather
than to
substance.
- In all the circumstances I have concluded that the point
should
count against Wolseley when deciding whether to withhold
relief
on the ground of detriment or prejudice to Wolseley, but that it
should
not be given the degree of weight that Mr McCracken
seeks
to attribute to it. I do not
regard
it as negativing my finding that it was
reasonable
for Wolseley to continue with the works after the claimant had questioned the
validity
of the planning permission or after he had threatened and then commenced proceedings for judicial
review..
Detriment to good administration
- Both Mr
Stephenson
for the council and Mr Goatley for Wolseley place considerable
reliance
on detriment to good administration as a further ground for withholding
relief.
They point out that the
refusal
of
relief
on this ground was upheld by the House of Lords in Caswell. In that case Lord Goff, having
referred
to observations of Lord Diplock in O'
Reilly
v.
Mackman [1983] 2 AC 237 on the public interest in good administration, went on:
"I do not consider that it would be wise to attempt to formulate any precise definition or description of what constitutes detriment to good administration. This is because
applications
for judicial
review
may occur in many different
situations,
and the need for finality may be greater in one context than in another. But it is of importance to observe that
section
31(6)
recognises
that there is an interest in good administration independently of hardship, or prejudice to the
rights
of third parties, and that the harm
suffered
by the
applicant
by
reason
of the decision which has been impugned is a matter which can be taken into account by the court when deciding whether or not to exercise its discretion under
section
31(6) to
refuse
the
relief
sought
by the
applicant.
In asking the question whether the grant of
such
relief
would be detrimental to good administration, the court is at that
stage
looking at the interest in good administration independently of matters
such
as these. In the present context that interest lies essentially in a
regular
flow of consistent decisions, made and published with
reasonable
dispatch; in citizens knowing where they
stand,
and how they can order their affairs in the light of the
relevant
decision. Matters of particular importance, apart from the length of time itself, will be the extent of the effect of the
relevant
decision, and the impact which would be felt if it were to be
re-opened.
In the present case, the court was concerned with a decision to allocate part of a finite amount of quota, and with circumstances in which a
re-opening
of the decision would lead to other
applications
to
re-open
similar
decisions which, if
successful,
would lead to
re-opening
the allocation of quota over a number of years. To me it is plain, as it was to the judge and to the Court of Appeal, that to grant the appellants the
relief
they
sought
in the present case, after
such
a lapse of time, would be detrimental to good administration …" ([1990] 2 AC at 749F-750B).
- It is
submitted
that in the planning context there is a particular need for prompt challenges and certainty in the interests of good administration. The need to bring any challenge to a planning permission
speedily
has been emphasised
repeatedly
in the cases (although they must now be
read
subject
to the qualifications in
R
(Burkett)
v.
Hammersmith & Fulham LBC [2002] 1 WLR 1593). Mr Goatley cites, by way of example, the
reasons
given by Pill LJ in
R
v.
Newbury DC, ex p. Chieveley Parish Council (Court of Appeal judgment dated 23 July 1998):
"A
reason
for that approach is that a planning permission is contained in a public document which potentially confers benefit on the land to which it
relates.
Important decisions may be taken by public bodies and private bodies and individuals upon the
strength
of it, both in
relation
to the land itself and in the neighbourhood. A chain of events may be
set
in motion. It is important to good administration that, once granted, a permission
should
not
readily
be invalidated. As confirmed in the House of Lords,
section
31(6)
recognises
that there is an interest in good administration independent of hardship, or prejudice to the
rights
of third parties. The court is entitled to look at the interest in good administration independently of those other matters. It is important that citizens know where they
stand
and how they can order their affairs in the light of the
relevant
decision (Caswell …). In my judgment, weight
should
be given to this aspect of the case notwithstanding the absence of convincing evidence that the
applicants
for planning permission have been prejudiced by the delay …. I have no doubt that interests of good administration, which, as contemplated by Caswell, extend beyond the interests of the parties to the litigation,
should
constitute an important factor in the decision."
- Although Mr Goatley also
relies
on
R
v.
North West Leicestershire DC, ex p. Moses, a decision of the Court of Appeal dated 12 April 2000 which cites Chieveley, it was based on
very
different facts and I do not think that it adds to the
relevant
principles.
- Mr McCracken, on the other hand,
relies
on the following passage in the judgment of the Court of Appeal in
R
(Lichfield
Securities
Ltd.)
v.
Lichfield District Council [2001] PLCR 519,
submitting
that, although not an essential part of the court'
s
reasoning
in the case, it is of
strong
persuasive authority:
"39. The question of possible detriment to good administration arises under
section
31(6) only if there has been undue delay. Mr Mole, for LDC, has laid understandable
stress
on this ground for denying
relief
which is otherwise called for. It is a
relatively
unexplored ground, if one may judge by its brief appearance in Fordham'
s
encyclopaedic Judicial
Review
Handbook (2nd ed), paragraph 26.9.3, no doubt partly for the
reasons
indicated in Lord Goff'
s
speech
in
R
v.
Dairy Produce Quota Tribunal, ex p. Caswell [1990] 2 AC 738 at 749-750. Lord Goff was careful to avoid a formulaic approach, limiting himself to the
specific
effect in that case of a
very
long delay on the desirability of a
regular
flow of consistent decisions by the tribunal in question. But a further
reason
for the
relative
infrequency of decisions based on good administration is in our
view
that it can come into play only (a) where undue delay has occurred, and (b) - in practice - where the consequent hardship or prejudice to others is insufficient by itself to cause
relief
to be
refused.
In
such
a
situation
it can
rarely,
if ever, be in the interests of good administration to leave an abuse of public power uncorrected. Indeed Fordham
records
the decision of May J in
R
v.
Mid-Warwickshire Licensing Justices, ex p. Patel [1994] COD 251 that, despite undue delay, the interests of good administration were
served
not by withholding but by granting
relief."
(per
Sedley
LJ at at 539-540)
- In my judgment it is plain that detriment to good administration is capable in principle of amounting to a
sufficient
reason
for withholding
relief.
Section
31(6) of the 1981 Act
so
contemplates and Caswell
shows
that circumstances can arise where
relief
may properly be
refused
on the ground of detriment to good administration even in the absence of proven hardship or prejudice to third parties. I do not think that the Court of Appeal in Lichfield can have had in mind the kind of
situation
that arose in Caswell when making the observations that it did about the limited
room
for
reliance
on detriment to good administration. The context in Caswell was, however,
very
different from that of the present case, and the observations of the Court of Appeal have much greater
relevance
to the present context. But even then they
should
in my
view
be
read
not as precluding the
refusal
of
relief
on the ground of detriment to good administration, but as
serving
to emphasise the need for caution in deciding whether the grant of
relief
really
would be detrimental to good administration and, if
so,
how much weight to attach to that detriment.
- I do not doubt the importance of certainty in the context of planning decisions, for
reasons
of the kind mentioned in Chieveley. Third parties are entitled to
rely,
and do in practice
rely,
on the information contained in the planning
register,
and to quash a planning decision long after it was made will undermine the basis upon which people have acted in the meantime. The developer who undertakes work in
reliance
on the permission is likely to be the person principally affected, though is also likely to be the person best placed to establish
substantial
hardship or prejudice. But it would be wrong to focus on the developer alone. Others may also have
relied
on the planning permission and have ordered their affairs accordingly, e.g. in negotiating the price of property near the development. It is
very
unlikely that all those affected could be identified or that
specific
hardship or prejudice could be proved in
relation
to each. Nevertheless it is contrary to the interests of good administration to undermine the basis upon which they have acted (and at the
same
time to create uncertainty as to the
reliance
that can
safely
be placed on apparently
valid
planning permissions in the future). I therefore consider that detriment to good administration ought to be taken into account as a
separate
and additional factor
relevant
to the exercise of discretion to quash. But it is of only
secondary
significance
as compared with the hardship or prejudice to the developer.
- In
reaching
that conclusion I have borne in mind that the interests of good administration cut both ways, in that they are also
served
by correcting legal errors where they have occurred. But in my
view
there would
still
be a net detriment to good administration if the planning permission were quashed
so
long after it was granted.
Convention issues
- The points
raised
in
relation
to the Convention have been touched on only
very
briefly in argument. Mr McCracken
submits
that article 8 is engaged, given the impact of the development on the claimant'
s
home, but does not contend that
refusal
of the
relief
sought
would amount to an infringement of article 8. He also
submits
that article 6 is engaged and that
refusal
of
relief
in the circumstances of the case would amount to a denial of a practical and effective opportunity to challenge the grant of planning permission; and he cites in that context a decision of the European Court of Human
Rights
in De Geouffre de la Pradelle
v.
France (1992)
Series
A No.235-B. But I confess that I have found the argument under article 6 difficult to follow and am wholly unpersuaded that there is anything in it.
- Wolseley also
relies
on the Convention. It is contended in Mr Goatley'
s
skeleton
argument that to grant
relief
after
such
a lapse of time would amount to a breach of Wolesely'
s
right
under article 6 to a hearing within a
reasonable
time and would give
rise
to the
removal
of, or a disproportionate interference with, the claimant'
s
property
rights
under article 1 of the First Protocol. The contentions were not elaborated orally and again I am not persuaded that there is any force in them.
- Thus in my judgment the
resolution
of this case is not materially affected by the Convention.
Discussion and conclusion
- I have
set
out the
various
factors
referred
to in argument as being
relevant
to the exercise of the court'
s
discretion and I have indicated my
views
on each of them. It
remains
for me to determine whether the overall balance favours the grant or withholding of
relief.
- In
short,
Mr McCracken
submits
that the court
should
act to protect the claimant'
s
position, by quashing the planning permission on the grounds of the council'
s
serious
errors and enabling the claimant to advance the objections to the development that he was previously denied the opportunity to make. Once the claimant took issue with the
validity
of the planning permission, Wolseley took a calculated
risk
to proceed with the work, which
should
not deprive the claimant of a
remedy.
The claimant'
s
interest in his home
should
prevail over money. For the council and Wolseley, by contrast, it is
submitted
that
relief
should
be withheld because of the financial consequences for Wolseley and the detriment to good administration if the planning permission were quashed.
- The conclusion I have
reached
is that I
should
refuse
an order quashing the planning permission. It is unnecessary to
repeat
what I have
said
about each of the
relevant
factors. I
stress
that, in the claimant'
s
favour, I attach
substantial
weight to the fact that the failure to comply with the publicity
requirements
and the EIA
requirements
were
serious
procedural errors and that the claimant has been denied an opportunity to make
representations
in opposition to a development that affects his home. I also bear in mind that the claimant is not to blame for the delay. But there has been undue delay within
s.31(6)
and it has been a
very
long delay; and to quash the planning permission after that lapse of time and in the circumstances now existing would in my judgment cause
very
substantial
hardship or prejudice to Wolseley. The adverse financial consequences for Wolseley, even taken at their lowest, are
very
large and are not to be discounted by
reference
to the
speculative
possibility that the fresh
application
for planning permission might
succeed
or that full enforcement action might not be taken or that losses might be
recouped
by a claim in damages against the council. Even allowing for the criticisms of Wolseley'
s
conduct, to the extent that I have accepted them, I take the
view
that the hardship or prejudice to Wolseley is a
sufficient
reason
for the
refusal
of a quashing order. To grant
such
an order would also be detrimental to good administration, but in the event I do not need to
rely
on this as a factor tipping the balance in favour of
refusal.
- The
same
considerations against the grant of
relief
do not apply to the declaration
sought
by the claimant as an alternative to a quashing order. To declare that the council failed to comply with the
relevant
publicity
requirements
and EIA
requirements
would
serve
to underline the council'
s
failings and would provide
some
satisfaction
to the claimant, but without affecting the
validity
of the planning permission itself or therefore of works carried out pursuant to it. It may not be
strictly
necessary,
since
this judgment can
speak
for itself, but I think it appropriate in all the circumstances to grant
such
a declaration.
- In his judgment on the permission
application
Elias J
said
that "[i]n
substance
it
seems
to me I have to try and determine where the lesser injustice is caused" (para 20). The court is in my
view
engaged in a
similar
exercise at the
substantive
stage,
within the framework of
s.31(6).
In my judgment the outcome in this case that produces the lesser injustice is that the claimant
should
succeed
to the extent of obtaining declaratory
relief
but that a quashing order
should
be
refused.
- I will hear counsel as to the precise form of the declaration and as to any consequential matters if the parties are unable to agree on a form of order in the light of this judgment.
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