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||Neutral Citation Number:  EWHC 2591 (Admin)
||Case No: CO/2571/2003
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
B e f o r e :
THE HONOURABLE MR JUSTICE RICHARDS
(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.
- 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.
- 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,
(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  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  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  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  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.
- 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  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  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 …" ( 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  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  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  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  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.
- 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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