Neutral Citation Number:  EWHC 3126 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Wednesday, 26th October 2011
B e f o r e:
MR JUSTICE HICKINBOTTOM
THE QUEEN ON THE APPLICATION OF COUPLAND
PETERBOROUGH CITY COUNCIL
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Mr R Buxton (Solicitor Advocate) appeared on behalf of the Claimant
Mr Lewis (instructed by Peterborough City Council Legal Department) appeared on behalf of the Defendant
As Approved by the Court
1. MR JUSTICE HICKINBOTTOM: On 18 November 2010 the defendant planning authority ("the authority") granted the interested party ("the developer") planning permission for the development of a site at 157-161 Fletton Avenue, Fletton, Peterborough, in the form of 14 one- and two bedroomed apartments. In this action, the claimant seeks to challenge that grant. Before me, he now renews his application for permission to proceed, the application having been refused on the papers by Lindblom J.
2. Initially, the developer sought planning permission to put 16 two bedroomed apartments on the site. The authority was not satisfied that that number of flats could be accommodated site, but subsequently agreed that 14 flats could be accommodated. On 20 February 2006, outline planning permission was granted on that basis. In granting that permission, one of the reasons given was this:
"The access and siting have been agreed and the design and external appearance of the development will be designed so as not to harm the residential amenities of any neighbouring properties and is therefore consistent with [various specified policies of the authority]."
3. The course of the detailed proposals was not smooth. In 2008, the authority refused to grant planning permission for four one- and 10 two bedroomed apartments. In 2009, approval was given to a second proposal; but that approval was by consent quashed in November 2009, on the basis that it went beyond the parameters of the outline planning permission grant. The developers made a third proposal, which was granted on 18 November 2010; and it is that grant that the claimant now seeks to challenge.
4. In his application, the claimant relied upon six grounds, as follows:
5. (i) the authority considered itself curtailed by its previous decisions to accept substandard separation distances;
6. (ii) the authority accepted a density of three to four times the density provided by its own policy statement;
7. (iii) the authority treated the planning history as progressively curtailing the ambit of its consideration of further applications;
8. (iv) the authority accepted a height of building that would be inadequate to comply with other legislation and in particular building regulations;
9. (v) the authority ignored its own decision in 2008 that the courtyard was cramped, justifying the refusal of that application; and it failed to explain its change of view; and
10. (vi) the authority erred in law in failing to have regard to the fact that the 2006 outline planning permission had expired, and was thus of no material relevance to a determination of the application before it; or, alternatively, in failing to consider whether, if it was right to have some regard to it, what if any weight should be attached to it.
11. However, before me, although ground (vi) to an extent reflects some of the other original grounds, Mr Buxton on the claimant's behalf pursued only grounds (iv) and (vi). The other grounds were not pursued as discrete grounds, the claimant accepting (in my view, quite correctly) that each of those grounds involves issues of planning judgment which the authority properly exercised and which this court cannot impugn, even if the claimant himself considers the conclusion of the authority to be incorrect.
12. The primary ground relied upon was ground (vi). In respect of that, before me today, Mr Buxton has developed the submission that, on a true reading of the report upon which the authority's decision was based, the officer (Ms Amanda McSherry) either worked on the basis that (or suggested to the authority that) the 2006 outline planning permission was still current, whereas it had lapsed. However, in my judgment, that proposition is simply unarguable. The officer's report refers to the 2006 outline planning permission in a number of places, but particularly on page 17 of her report, in a paragraph beginning thus:
"This current full application, similar to the previous application...., stands alone and the local planning authority are entitled to consider matters afresh."
That makes clear that the officer was working on the (correct) basis that the earlier 2006 outline planning permission was not capable of implementation at the end of 2010. In any event, (i) the fact that that outline planning permission, had time expired was expressly referred to in her report when she considered the evidence of a particular objector; and (ii) it would have been abundantly apparent to both the officer and those members of the Committee of the authority that considered the application, that in late 2010 an outline planning permission granted in 2006 was not capable of implementation, because such grants are only so capable for a period of 3 years.
Turning to the substance of ground (vi), Mr Buxton put his submissions in a number of ways. For example, he submitted that the authority took into account the prior, lapsed outlined planning permission for 14 flats, in circumstances in which in 2010 it could not, in line with its then current policies, have properly granted outline planning permission for as many flats as that. That early grant, in the words of the skeleton of Mr Buxton, ought to have been "accorded rather little or no weight" in the making of the 2010 decision.
13. Mr Buxton accepted, as he was bound to do, that the authority was entitled to take into account the planning history of the site, and that the weight given to any part of that history was quintessentially a matter for it. In fact, on a full reading of the officer's report, she does not appear to have given much weight to that factor. She certainly did not, as suggested in the grounds, regard it as paramount or determining or even a constraining or limiting factor - far from it. On a fair reading of the report as a whole, I can see nothing in the report to suggest that the officer felt in any way constrained by the earlier outline planning permission. Rather, she gave a detailed substantive analysis of relevant aspects of residential amenity, impact on light levels, privacy, noise disturbance, bin storage etc, and came to conclusions involving a planning judgment in relation to them.
14. As Mr Buxton properly conceded in abandoning grounds (i), (ii), (iii) and (v), it is trite that weight given to relevant planning considerations is a matter of judgment for the case officer and ultimately the planning committee. In this case, in my judgment, it is simply not arguable that the weight given to the factor of the 2006 outline planning permission, which had effectively lapsed, was irrational, or such as to render the ensuing decision of the authority unlawful.
15. Turning finally to ground (iv), relating to height, in paragraph 13 of his skeleton argument Mr Buxton submitted that it cannot be rational for a decision maker, A, the planning authority, to allow height X, if it knows that another decision maker, B, (e.g. the authority responsible for building regulations) is going to have to allow or require height Y which A knows it would otherwise disprove. However, that submission is, with respect, based upon a misunderstanding of the responsibilities and scope of the planning authority. That scope is restricted to relevant planning considerations; and, as stressed in the outline planning permission, the authority's consideration was focused upon matters of residential amenities. I do not know, but it may be that the planning permission which has now been granted will mean that a building that complies with the building regulations or some other regulatory scheme cannot be erected. In that sense the planning permission granted may be incapable of implementation. However, that is not a matter for the planning authority: it is a matter for the developer and of course the authorities that deal with those other matters. In respect of planning, the authority only has to take into account relevant planning considerations. In my judgment the authority in this case, in relation to height, undoubtedly and unarguably did so.
16. For those reasons I shall refuse this application.