Neutral Citation Number:  EWHC 1373 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Thursday, 6th April 2006
B E F O R E:
MR GEORGE BARTLETT QC
(sitting as a Deputy High Court Judge)
- - - - - - -
THE QUEEN ON THE APPLICATION OF
SOUTH KESTEVEN DISTRICT COUNCIL
HEREWARD HOMES LTD
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MR GREGORY JONES (instructed by Messrs Richard Buxton) appeared on behalf of the CLAIMANT
MR RICHARD KIMBLIN (instructed by Messrs Sharpe Pritchard) appeared on behalf of the DEFENDANT
J U D G M E N T
(As approved by the Court)
Thursday, 6th April 2006
1. MR GEORGE BARTLETT: The claimant in this case, who occupies a second floor flat at 3 St Paul's Street, Stamford seeks judicial review of the grant of planning permission by the defendant Council for the erection of three flats and a two-storey dwelling on land to the rear of 4 St Paul's Street. Permission was refused on the papers by Sir Michael Harrison and a renewed application was refused by Leveson J but was granted on appeal by Mummery LJ.
2. 3 and 4 St Paul's Street are part of a terrace of buildings in the Stamford Conservation Area and they contain shops on the ground floor and flats on the two storeys above. 4 St Paul's Street is on the corner of a street called Star Lane and behind it, set slightly back from the Star Lane frontage, is a contiguous two-storey building and attached to that is a one-storey building formerly used as a bicycle shop.
3. The application for planning permission was made on 22nd June 2004 and the resolution to grant planning permission was passed at a meeting of the Council's Development Control Committee on 11th January 2005. At the same meeting, permission was granted for a similar development on an application that had been made on 18th September 2002, later withdrawn and then re-registered on 18th June 2004. It is agreed that the same considerations apply to that permission as to the one granted on the later application. In addition, conservation area consent was given for the demolition of the existing buildings on the application site. No challenge is made in relation to that.
4. The basis upon which the claimant originally sought to challenge the permission arose from the earlier treatment of the application by the Development Control Committee. It had first considered the application at its meeting on 26th October 2004 and there was an officer's report recommending the grant of permission. The claimant had written on 13th July 2004 objecting to the development. His letter said:
"These proposals are effectively asking to build a three storey building a few metres in front of my property. While the proximity of the development is not close enough to cause a 'right to light issue', a fact aided by my residence being on the second floor, the impact that this same developers last house building exercise had to the other side of my property is incredibly claustrophobic. In fact I would take this opportunity to invite you to see for yourself, by coming to my property. You will see quite quickly, that the plans do not do justice to the boxed-in feeling that now exists in a previously airy living room, which is now threatened even further on the other side."
5. At its meeting on 26th October 2004 the Committee resolved to defer consideration of the application and to carry out a site inspection. A group of members viewed the site on 10th November 2004. The evident unhappiness of the members about the proposal which had led to the resolution on 26th October evidently had not dissipated when the Committee met again on 16th November 2004. Despite having before them the same officer's report recommending planning permission, the Committee resolved to defer the application, as the resolution put it, "pending the submission of amended plans showing the main building to be lowered to two-storey, approximately half a metre above the smaller building, access for all at the southern end of the site and the elimination of the balcony at the rear, together with obscure glazing for rear windows facing the flats to the west."
6. On 1st December 2004 the planning officer, Mr Wright, who was responsible for advising the Committee on the applications throughout, wrote to the applicant as follows:
"Whilst I am satisfied with the proposal as it currently stands our elected Members are not, as you are aware from their comments at the last meeting.
Although Councillors Woods and Genever were the main opponents of the scheme, the decision taken to defer the application was that of the whole Committee.
The amendments sought by Members are:
(a) A reduction in the height of the main building to a two storey, so that it has an overall height of no more than 0.5m above the smaller building;
(b) Access for all properties at the southern end of the site and;
(c) Elimination of the balcony at the rear, together with obscure glazing for rear windows facing the flats to the west.
The above are the Committee's concerns, as minuted. Could you please let me know whether you wish to have the application determined as it currently stands or if you intend to accede to our elected Members' requirements."
7. In the event, the applicant decided that he would not, as the planning officer had put it, accede to the elected Members' requirements and asked to have his application determined as made. At its meeting of 11th January 2005 the Committee, with a report from the officer in the same terms as before, resolved to grant planning permission subject to conditions. It gave as its summary of reasons for approval the following:
"The proposal involves the redevelopment of a site in a prominent position within the Stamford Conservation Area and adjoining a listed building.
It is considered, having regard to the relevant provisions of the development plan, that the proposed development will result in an enhancement of the character, appearance of the area, will not adversely affect the setting of the listed building and will not have a materially adverse impact on the amenities of neighbouring occupiers.
SK Local Plan - Policy C9."
8. As originally made, the principal ground on which the claimant's application for permission to apply for judicial review was that the summary reasons for the grant of permission were inadequate in the light of the way in which the Committee had previously treated the application. That ground did not find favour with Sir Michael Harrison on the application for permission and, after his refusal of permission, the claimant added a further ground of challenge. It relates to an earlier refusal of planning permission that had not been referred to in the statement of facts relied on in relation to the claim. The second ground is, in essence, that the Council failed properly to take into account that earlier refusal.
9. I am, as I shall say, satisfied that this second ground of challenge is a good one and that the application should, accordingly, succeed. I am very doubtful whether the application should succeed on the first ground, and I so indicated to Mr Jones. In view of that, Mr Jones does not seek to pursue that ground but reserves his position in relation to it should there be an appeal against my judgment in his favour on the second ground.
10. The earlier refusal to which this second ground of challenge relates was given on 13th May 2004, a few months before the Committee meetings which resulted in the planning permission in January 2005. On 18th November 2003 the interested party had applied for planning permission for the erection on the application site of three flats and a two-storey dwelling; a development which, in its essentials, was extremely similar to that for which planning permission has now been granted. That application was refused under delegated powers by the Council's head of Land Use Services on 13th May 2004 and I was told that the officer responsible for the decision was the same officer who advised the Committee in its consideration of the later application.
11. The reasons for refusal were stated to be:
"1. It is considered that the proposed new building to be erected on the Star Lane frontage would, by reason of its excessive overall length, and height at the eaves and ridge, be overbearing on the scene not only to the detriment of the character and appearance of this part of the Stamford Conservation Area but also the setting of the adjoining listed building; no. 4 St Paul's Street, and on the amenities of neighbouring residential properties.
2. It is further considered that the projecting central gable to the front elevation of the proposed building would constitute an incongruous and ill-fitting feature in the context. In view of the foregoing it is considered that the proposed development would be contrary to Policies C5 and C9 of the South Kesteven Local Plan."
12. That this refusal was a material consideration for the Council to have in mind in determining the application on which it granted planning permission is, in my judgment, clear. Indeed, there is no dispute on that matter between the parties. The materiality of an earlier decision on a similar application to a consideration of a later application is well-established. The rationale for that is that given by Mann LJ in North Wiltshire District Council v Secretary of State for the Environment  65 P&CR 137 at 145, in which he said:
"It was not disputed in argument that a previous appeal decision is capable of being a material consideration. The proposition is in my judgment indisputable. One important reason why previous decisions are capable of being material is that like cases should be decided in a like manner so that there is consistency in the appellate process. Consistency is self-evidently important to both developers and development control authorities. But it is also important for the purpose of securing public confidence in the operation of the development control system. I do not suggest and it would be wrong to do so, that like cases must be decided alike. An inspector must always exercise his own judgment. He is therefore free upon consideration to disagree with the judgment of another but before doing so he ought to have regard to the importance of consistency and to give his reasons for departure from the previous decision.
To state that like cases should be decided alike presupposes that the earlier case is alike and is not distinguishable in some relevant respect. If it is distinguishable then it usually will lack materiality by reference to consistency although it may be material in some other way. Where it is indistinguishable then ordinarily it must be a material consideration. A practical test for the inspector is to ask himself whether, if I decide this case in a particular way am I necessarily agreeing or disagreeing with some critical aspect of the decision in the previous case?"
13. Those remarks were made by reference to appeal decisions, but the same considerations apply in respect of an earlier decision of the planning authority itself (see R v East Hertfordshire District Council ex parte Beckham  JPL 55, R (Rank) v East Cambridgeshire District Council  JPL 454).
14. In order for a previous decision properly to be taken into account it is necessary that not just the fact of the determination, grant or refusal of planning permission, should be known to the decision maker and taken into account, but that regard should be had to the basis of the decision. In the present case, the officer's report, which remained in terms the same for the meetings on 26th October 2004, 16th November 2004 and 11th January 2005, referred to the earlier refusal under the heading "Site History". However, it did so in these terms:
"The only previous applications (SO3/1627/69 and CA/6139) on this site were for a similar development to that proposed under the current application but which incorporated certain features that were considered inappropriate to the sensitive location and they were, accordingly, refused. The current proposals, together with additional ones agreed with developers, address most of the design concerns."
15. As a description of the basis on which the earlier application had been refused, that is obviously inaccurate. It informs the Committee that refusal was simply for the reason that certain features of the proposed development were considered inappropriate and that the new application addressed most of the design concerns. In fact, the principal ground of refusal related not to particular features of the proposal but to the excessive overall length and height of the building which was said to be overbearing on the street scene, to the detriment of the character and appearance of the Conservation Area, the setting of the adjoining listed building and the amenities of neighbouring residential properties. Mr Jones submits that, in the light of this, the decision to grant planning permission was flawed.
16. Mr Richard Kimblin, who appears for the defendant Council, accepts that the earlier decision was a material consideration for the Council to take into account, but he submits that they did so. He suggests that the criticism that is advanced by Mr Jones of the officer's report and the way in which it deals with the earlier refusal, involves an unrealistic dissection of that report. He says that the report in terms did not mislead; it referred to a previous application having been made for a development that was described as similar. One of the similarities, he says, was height, and height was a matter that was actively considered by the Planning Committee. So, he says, there was no prejudice whatsoever to the claimant in the terms in which the earlier refusal was referred to in the officer's report.
17. I cannot accept these contentions. The Committee's principal concern, as evinced in its October and November resolutions, was as to the height and overbearing nature of the proposed building. Here was a decision taken in the name of the Council only a few months previously that said that such a development was unacceptable in terms of its length and height in view of its overbearing nature and the effect it had on the Conservation Area and adjoining buildings. The Committee was not told that it had been refused for this reason. As far as the Committee knew, it was only found unacceptable by the planning officer who refused permission because of certain elements of its design.
18. In these circumstances, I am in no doubt that the decision of the Council to grant planning permission was unlawful, leaving out of account, as it did, the basis upon which the earlier planning permission had been refused only a few months previously. It was undoubtedly necessary that the Committee should take the actual reasons for refusal into account because of the general desirability of consistency in decision making which is a principle that underlies the need to have regard to the planning history. The decision to grant planning permission must therefore be quashed. As I have said, it is agreed the same considerations apply to the decision to grant planning permission both on the 2004 application and the 2002 application.
19. MR JONES: My Lord, I am grateful. I ask for my costs. I have had an opportunity to speak with my learned friend and it is agreed that the actual assessment, save for one matter I will come on to address your Lordship, is agreed, if your Lordship finds favour, it would be more suitably dealt with as a detailed assessment rather than a summary assessment. There is also a conditional fees arrangement which the Local Authority would want to explore further which involves an uplift. The issue of principle, which I understand my learned friend would wish to raise, is to invite your Lordship that a proportion of our costs that we seek should be reduced on the basis that the second ground came later in the history of the proceedings. That is my understanding. So I will briefly address your Lordship on that point and then obviously hear what my learned friend has to say.
20. On the question of the timing of the application, my submission is there might be some force in that submission if, after having received the amendment after the refusal by Sir Michael Harrison, the Local Authority said that if we take the view that your first ground does not have merit, we accept that your second ground does have merit and therefore consent to judgment, but we will not pay for your additional costs in respect of the grounds. However, as we know, the Local Authority have faulted throughout, including going to the Court of Appeal. So what I am saying is if we had pleaded ground 2 from the outset, it would not have made any difference to the stance adopted by the Local Authority.
21. The second thing I would say in respect of the matter is a more general approach. Your Lordship should approach the matter on a holistic basis. The two grounds in terms of the work done for them were quite inter-related. As your Lordship indicated in the judgment, part of relevance was to look at a detailed way in which the matter had been considered. We know throughout, and particularly up until the November meeting, the question of height was a matter that had troubled the Committee. That was all set out and the work done in respect of our first ground which then addressed what we say was a (inaudible), but all of that work was applicable and would have been set out, in any event, as part of the context to be relied upon in respect of ground 2 because the principal issue which we say had not been properly articulated to the Members in respect of the previous refusal was on height and length. Therefore, since it was being argued that it would not have made any difference anyway, your Lordship has drawn attention to the fact, looking at the planning history, that was principally an issue which Members would have benefitted from knowing and that was precisely the reason it had been refused.
22. So my Lord, this not a case, in my submission, where really there are discrete points which would justify depriving the claimant of a proportion of his costs because when one actually looks at the substance of the matter, the two really do feed into one another.
23. MR GEORGE BARTLETT: Yes, what is going through my mind is that if you had raised this point at the outset, Sir Michael Harrison might well have granted permission, so that the costs of the renewed application before Leveson J and again before Mummery LJ really were due to your failure to raise the ground at that point.
24. MR JONES: My Lord, responding to that, again, whilst that might have had some force if Leveson J had said, "Well, actually I do not think much of ground 1 but I am with you on ground 2", as your Lordship would have seen from the judgment of Leveson J, he took a different view, and what I say about that is one cannot -- I would say one should be very hesitant to suggest what Sir Michael Harrison might have thought, given that we know that Leveson J, having set it out and having had the benefit rather than disbenefit of my oral submissions, I hope, was not persuaded, although, fortunately for us, your Lordship and Mummery LJ were persuaded. So I caution your Lordship of taking that approach.
25. The other thing I would say, and I realise your Lordship has expressed doubts about it, is that our position is in respect of ground 1 and, if I may say so, a sensible way for the court and parties to dispose of the matter, we have not fully developed an oral argument on ground 1. As I indicated, the direction the court gave and our response to it, in my submission, is consistent with the over-riding objective. But having said that, it should not be the case that somehow by taking that sensible course that then counts against us in any costs judgment.
26. MR GEORGE BARTLETT: No, indeed, because the point has not been either withdrawn or determined against you; it has merely been reserved.
27. MR JONES: My Lord, that is right. I do say that is relevant when one concerns comes to the costs.
28. MR GEORGE BARTLETT: Yes. Yes, Mr Kimblin.
29. MR KIMBLIN: I am rather in the position of responding to my own point, but my learned friend was right, my position and my submission is that clearly the claimant is entitled to an element of his costs. My submission is that it is a question of the proportion. I invite your Lordship to take a broad brush approach to arrive at an overall proportion which can then, as to detail, be considered on a detailed assessment. The points that are relevant, in my submission, are these. Firstly, these were proceedings which were commenced without a protocol letter. The first we had was from the claim bundle. The original claim had two grounds in it. Ground 1 has always continued and is now ground 1 before your Lordship. There was another ground 2, which was summarily dismissed by Sir Michael Harrison and so that went by the board early on, and in its stead, as my Lord knows, we have the present ground 2. My short point is that it came in late in the day and I adopt my Lord's point as to what might reasonably have happened had the point been taken either as it should have been by a protocol letter or, at the very least, in the original claim.
30. MR GEORGE BARTLETT: It would not have made any difference had it been in the protocol letter. You would still have resisted the application.
31. MR KIMBLIN: My Lord, yes, that is right, but my Lord's point as to what would have happened or would have been likely to have happened if it had come before the learned judge on the papers, that is a relevant consideration.
32. MR GEORGE BARTLETT: Yes, but as Mr Jones points out, that would only be a guess that would have to relate to the particular Judge deciding the matter and that would clearly be an unacceptable way to approach matters.
33. MR KIMBLIN: Can I put it this way, then: that essentially the claimant has succeeded on one ground and the overall thrust of my Lord's judgment, without deciding the point, is that there is not much in ground 1, clearly effort has been expended in respect of both. The first ground is the most novel and the one that is essentially seeking to create some new law. Putting it very shortly, the claimant has succeeded on one ground and not on the other. In those circumstances, I invite your Lordship to apportion costs to reflect the outcome. So out of the three grounds that there have been, one got nowhere, one would not have got anywhere, and there was success on the third. My Lord, those are my points.
34. MR JONES: My Lord, may I address you on those points?
35. MR GEORGE BARTLETT: There is no need, Mr Jones. The defendant must pay the claimant's costs, to be assessed on the standard basis. My reason for so determining is that it is clear that even though the ground on which the claimant has succeeded was added somewhat late, and indeed after permission had been refused on the papers, it does not appear that any significant costs were incurred that would not have been incurred had that point been taken earlier. In particular, all the matters going to the first ground, which has not been pursued for reasons that I have given, went also to the second ground which has been successful.
36. Furthermore, it cannot be said that had the second ground been pleaded at the outset, the costs of applying and renewing application for permission could have been avoided. I see no reason to deprive the claimant of any part of his costs. He has been successful and, insofar as he has been successful only on one ground, that does not justify any reduction in the costs that he ought to receive.
37. MR KIMBLIN: There is only one further matter, if I may. As my Lord knows, if the matter is to be pursued any further, I am obliged to make an application to my Lord. So I do apply for permission to appeal on these four points. Firstly, that the approach taken in respect of the ground on which the claimant succeeds is one which goes somewhat further than the previous authorities do. If I can elaborate on that, for example, by reference to Rank and, indeed, which featured in your Lordship's judgment. They relate to respected decisions and also where they relate to material considerations are concerned with a complete absence of reference to the material consideration. The issue in this case has been a finer one than that and has set a higher standard for officers' reports and the way in which material considerations are brought before Members. So the first point is that it is an extension of duty.
38. The second point is related to the first in that that matter is of some importance to Local Authorities because it goes to the level of detail and approach and resources to be put into the reporting of applications to Committees. So it is of some general importance.
39. My third and fourth points can go together and they relate to the view which has been taken when the matter has been heard previously. The matter has been before Leveson J and Mummery LJ. In respect of Leveson J, the matter was argued at length and I do not have the exact times but I expect it was argued for rather longer on the permission hearing than on the substantive hearing, and the learned judge took a different view. In respect of his consideration on the papers by Mummery LJ, clearly the learned Lord Justice did not have the advantage of the argument before him, although clearly he found the grounds to be arguable. But we do not have from Mummery LJ any explanation as to why he disagreed with Leveson J or, for that matter, in respect of the ground which was not pursued, Sir Michael Harrison. There is on the document which provides permission a short statement that it is an appropriate case for judicial review. So on the one previous case in which this has been heard, or the one previous oral hearing, a different view was taken and that, in my submission, is relevant to the consideration of whether it would be appropriate to grant permission to appeal.
40. MR JONES: My Lord there is just one matter. I only raise it not to oppose, but just as a matter of fact in respect of your Lordship's decision in Rank. My learned friend said there was no reference at all in that case to the previous refusal and appeal decision, but your Lordship should note at paragraph 10 there was in the planning history of Rank in the officer's report reference to the refusal and the appeal decision, but simply nothing more. That is the only point.
41. MR KIMBLIN: That is right.
42. MR GEORGE BARTLETT: Yes, I am not going to grant permission to appeal. It does not seem to me that the background in terms of the grant of permission would, in the absence of other persuasive considerations, justify the grant of permission in this case. As to the contention that the approach I have adopted goes further than previous authorities, I do not believe that to be the case. The issue is one of material considerations. It is accepted by Mr Kimblin that the reasons for the earlier refusal are a material consideration and the conclusion that I have reached is that those reasons were not adequately put before the Committee. Indeed, they were wrongly represented so that the material considerations that they constituted were not taken into account.
43. As to the importance of this to planning authorities, it seems to me that no problem need arise. All that is necessary is that the planning officer should accurately rather than inaccurately represent to the later Committee the basis upon which its authority has refused an earlier application.
44. MR JONES: I am grateful to your Lordship.