Neutral Citation Number:  EWCA Civ 1322
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE FORBES)
Royal Courts of Justice
Thursday, 20th October 2005
B E F O R E:
LORD JUSTICE PILL
SIR CHRISTOPHER STAUGHTON
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THE QUEEN ON THE APPLICATION OF JONATHAN DAVEY
(1) AYLESBURY VALE DISTRICT COUNCIL
(2) MENTMORE TOWERS LIMITED
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(Computer-Aided Transcript of the Palantype Notes of
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MR GREGORY JONES (instructed by Messrs Richard Buxton Solicitors, Cambridge CB1 1JX) appeared on behalf of the Applicant
The Respondent did not appear and was not represented
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J U D G M E N T
(As approved by the Court)
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1. LORD JUSTICE PILL: This is an application for permission to appeal against a decision of Forbes J dated 11th March 2005. The claimant is the owner and occupier of Cheddington Lodge in Buckinghamshire, which adjoins Mentmore Towers. The interested party, Mentmore Towers Ltd, is the owner of Mentmore Towers. It applied for planning permission and listed building consent for its extension and conversion into a hotel and construction of two large new buildings in the grounds. Mentmore Towers is a Grade I listed building, set within a Grade II* historic park. The relevant consents were granted by the Aylesbury Vale District Council on 3rd February 2004. It is submitted that the planning permission and consent were not lawful and should be quashed.
2. Counsel, Mr Gregory Jones, has submitted skeleton arguments. He has, in a helpful summary note supplied to the court, set out what in my judgment are the only three points of substance which require any detailed consideration.
3. The submission is that the planning officer's report did not sufficiently inform the committee which made the decision, and, moreover, in one of the grounds that there was not, as there should have been, a "green travel plan".
4. A point is taken on the concept of enabling development, a concept which emerges from the policy statement of English Heritage, who of course have responsibilities with respect to historic buildings and listed buildings. There was consultation with them, and consultants Knight Frank were instructed by the Aylesbury Vale District Council ("the council") to consider this, along with other issues. It is of course essential if a committee is to take a lawful decision that, in a case such as this, the planning officer does submit to the committee sufficient information fairly presented, because only then can a legitimate decision be taken.
5. The point on enabling development turns into a narrow issue, which is set out at paragraph 2 of the note I have mentioned:
"There was, however, a fundamental conflict between the application and the EHPS [English Heritage Policy Statement]. The EHPS provides that full information covering all financial aspects of the proposal at a sufficient degree of detail is necessary in order to make an informed decision, and that information as to the financial considerations is fundamental."
6. It is submitted that members were unable to assess the risk that funds would not be available to implement the necessary restoration of the building. It is submitted that the officer's report did not grapple with the financial issue, and the issue was fudged.
7. The English Heritage approach to the proposed development appears from the judgment of Forbes J. The judge pointed out that the EHPS is not mandatory but extra-statutory guidance, though it is a material consideration in any planning decision. At paragraph 32 the judge pointed out that:
"In its letter of 24th December, English Heritage had also gone on to indicate expressly that it was a matter of local policy and local decision-making and that it did not object to the grant of planning permission (subject to the imposition of suitable conditions)."
8. The judge added at paragraph 35 that:
"... on a fair reading of the Knight Frank report as a whole, no fundamental conflicts with the EH Policy Statement were identified that were material, ..."
9. At paragraph 37 the judge considered the approach of the council to the question of enabling development. He found that it was entirely rational having regard to the advice it had received from the professional experts, including Knight Frank:
"... it is not surprising that the Officer's report does not condescend to details of the guidance contained in the EH Policy Statement in the light of the advice given by Knight Frank and the views expressed by the author of the policy in question, English Heritage."
10. In the Knight Frank report reference had been made, at paragraph 4.4.5:
"It does seem to us therefore that the hotel or conference centre use of the property is probably the most satisfactory."
11. Then under the heading "The Enabling Development Approach", at section 5 of the report:
"The developers have not provided a breakdown of the restoration costs which would enable a conventional assessment to be made. Clearly the Council could commission its own detailed assessment of restoration costs (this would no doubt involve considerable expenditure) or alternatively it could revert to the applicant insisting that this information be provided. In this instance, however, we would debate whether in fact it is necessary."
The report goes on to consider the overall viability of the scheme.
12. There is no doubt that the present point was taken by the applicant before the judge, and the judge's summary of the submissions made makes that clear. Summarising Mr Pereira's submission (Mr Pereira appeared for the applicant before the judge):
"full information is necessary in order to make an informed decision, including as to the financial considerations which are fundamental, which clearly demonstrates need - information must be supplied to cover all financial aspects of the proposal, at a sufficient degree of detail to enable scrutiny and validation ..."
That is Mr Pereira's summary of the EHPS. Based on it was the submission, recorded at paragraph 28 of the judgment, that the officer's report did not properly advise members in relation to the EHPS.
13. On this point, as on the other points at issue, the judge set out carefully and comprehensively the submissions which had been made, and in my judgment dealt cogently and convincingly with them. He considered the criticisms of the report to the members, and concluded that the council's approach on this aspect of the matter is unimpeachable as a matter of public law. The judge had in mind the contents of the report to council in the context of advice given by Knight Frank and the views of English Heritage.
14. In my judgment that was a sustainable approach. In the light of the material which was available I do not consider it arguable that this decision of the committee should be quashed, on the basis that the information with which they had been provided was insufficient.
15. The second point raised is in relation to the absence of a GTP (a green travel plan). It is submitted that in the context of this case a plan should have been submitted to the decision-maker. It should have been considered by members, a GTP may well have been required and, in a report to the committee, the officers failed to deal with the question.
16. As on the first issue, the council were, in my judgment, entitled to have in mind the context in which any traffic issue arose. As the judge pointed out at paragraph 42 of his judgment:
"... the views of the Highway Authority [were] that this was not considered to be a problem for the local road network (see paragraph 9.29 of the Officer's report)."
17. At paragraph 49 the judge found, and was entitled to find in my judgment:
" I agree with the submission made by both Mr Lowe and Mr Straker [who appeared for the respondents below] that the substance of the issue was clearly considered by the Highway Authority, although the label 'green travel plan' was not actually used."
In that context, I agree with the judge that this decision cannot be impugned on the basis of the absence of a GTP.
18. The judge went on to find that in his judgment the matter was academic, because on 1st December 2004 the interested party executed under seal a unilateral undertaking to the council. That set out obligations in relation to a green travel plan, and provided that the undertaking was a local land charge and should be registered as such. Mr Gregory Jones submits that the point is not entirely academic, even in the light of that undertaking. Moreover, the judge was wrong to say that he would have exercised his discretion not to grant relief even if, contrary to his finding, a GTP had been required.
19. I accept that the discretion of a planning authority where the statute or the planning guidance requires a particular report to be obtained is a comparatively narrow one. But in the circumstances of this case, as described by the judge, the judge's finding was sustainable and, in my judgment, it is not arguable that it can be challenged in this court.
20. The third point, and the one which at the oral hearing before this court the day before yesterday took most time, was in relation to helicopters. On this subject too an undertaking was given by the proposed developer, and the undertaking in clause 3.1, was a planning obligation:
"To prohibit the landing or taking off of helicopters within the Application Site."
21. Mr Gregory Jones submits that the question should have been subject of a planning condition, the planning officer having told the committee, as he accepts he did, that a planning condition would be imposed. The officer says that he changed his mind. Reasons are given for that in his report and incorporated in the judgment. Moreover, the council refer to a discretion as to conditions which in the event was left with council officers when the permission was granted. The council submitted that it was a proper exercise of that discretion that no condition was imposed.
22. Mr Gregory Jones explained to us the manner in which this point had the arisen, and the representations which had been made. The planning officer recognised, at paragraph 9.37 of his report, that:
"... the Council would have to consider appropriate conditions in particular regarding access arrangements, possible use of helicopters and the use and screening of the generator facility."
23. The officer then stated, at paragraph 10.6 of the report, that:
"Matters to be included as conditions in any planning permission include:
b) restrictions on helicopters ..."
24. The representations of the parish council were recorded. A well-informed local resident was also involved in an objection to helicopters. The officer recorded the parish council's comment on plans originally submitted:
"f) PC question whether helicopter landing/take off is proposed on-site."
25. At page 163 of the bundle it was recorded that the parish council:
"e) suggest a condition to prevent helicopters from landing in the grounds."
26. That became at a later stage, by way of additional representations:
"No helicopter landings in the grounds."
27. Mr Gregory Jones' submission is that, upon his change of mind on this question as to a condition, the planning officer should have referred the matter back to the council, especially as it had not at an earlier stage been a topic raised when an environmental impact assessment was conducted. There was, he submits, a real need for local residents to be protected from the intrusive effect of helicopters.
28. Plainly, the planning officer pointed out in his report the problems in relation to helicopter conditions and his response. The issue is whether, upon the sequence of events which occurred, it is arguable that the overall decision of the council was unlawful. I have referred to the somewhat tentative manner in which the objection first arose, though I am not doubting for a moment the strength of feeling on the subject.
29. Mr Gregory Jones submits in relation to the judge's finding that as a matter of discretion he would not have granted relief in any event, having regard to the undertaking, that the members of the council were entitled to have an opportunity to reconsider this: in particular to consider the question whether attempts should be made by condition to regulate or prevent the landing of helicopters off-site, as well as the provision in the undertaking in relation to on-site movements. The question of off-site use has become a practical one, it is submitted, since the relevant decision was taken. It has arisen because the interested party has purchased the nearby country club and may seek to service the hotel by means of helicopter movements beginning and ending on the premises of the club.
30. The question of off-site conditions is, of course, a difficult one in terms of drafting an agreement. The court has been referred to R v Bristol City Council ex parte Anderson (2000) 79 P&CR 358, a decision of this court, where it was held, in a case where permission was given for student accommodation on a substantial scale, that it was lawful to impose a condition insisting on a management agreement for the premises, which would include for such matters as the students' use of motor cars (with off-site implications) and their welfare. In my judgment, that is very different from the present situation.
31. The planning officer was entitled to take the approach he did, as he explained it. Counsel submits that if the planning officer had gone back to the committee, it is possible they would have changed their decision if the interested party refused to expand its undertaking to cover off-site movements. In the context of this case and the basis of the material available to the committee, it does not appear to me to be a real possibility that, had the officer gone back to the committee, a different decision would have been taken on the planning application as a whole.
32. Mr Gregory Jones has argued the three points which the court has considered persuasively. In my judgment the officer's report was, in the circumstances of this case, a sufficient document on which a decision could be taken. It is not a real possibility that the decision would have been different had further matters been included in it. The judge has, with the greatest care, set out the issues and considered the material and the submissions before him. He was, in my judgment, fully entitled to reach the conclusion he did on each of the points at issue. It is not arguable that his judgment would be reversed in this court.
33. Accordingly, I would refuse the application for permission.
34. SIR CHRISTOPHER STAUGHTON: I agree.
ORDER: Application for permission to appeal refused.
(Order not part of approved judgment)