Springhall, R (on the application of) v London Borough of Richmond Upon Thames

This is an appeal by Chris Springhall against the order of the Hon Mr Justice Richards (as he then was) of 18^th January 2005 dismissing his claim for judicial review of a decision by an officer of the London Borough of Richmond upon Thames (“the Council”) of 24^th December 2003, in the purported exercise of a delegated power, to grant planning permission to his neighbour for demolition of an existing single storey dwelling known as “Ripple” and its replacement by a new single storey dwelling on Eel Pie Island, Twickenham.

“Ripple” is within the Twickenham Riverside Conservation Area and is a “building of townscape merit” within the terms of the relevant development plan and supplemental local policy, both of which contained a presumption against demolition of such buildings.

The claim before Richards J involved two main issues, namely (1) whether the decision to grant planning permission without reference to the Council’s Planning Committee breached Mr Springhall’s legitimate expectation that he would be entitled to participate in the decision-making process by making oral representations to the Committee; and (2) whether the decision to grant planning permission under delegated powers was ultra vires. The Judge rejected Mr Springhall’s claim on both issues.

On this appeal, Mr Springhall, with the leave of the Judge, pursued the second main issue as to delegation, which, as it was argued before the Court, was presented as three sub-issues, namely:

the width of the ratio of this Court’s judgment in R(on the application of Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 as to the exercise by officers of delegated powers in the determination of planning applications;

whether the officer acted outside the Council’s scheme of delegation of its powers in planning applications by exercising and determining in the applicant’s favour an application that arguably significantly departed from the Council’s Development Plan or interim polices; and

whether the officer acted outside his authority in determining and allowing an application to demolish and rebuild “Ripple”, contrary to the view of Mr Springhall, expressed in writing as an interested party, but where Mr Springhall did not indicate a wish to address the Planning Committee and the officer considered that the application accorded with the Council’s Development Plan and Supplementary Planning Guidance notwithstanding the presumption in them against demolition.

The Town and Country Planning Act 1990 (“the 1990 Act”) places the responsibility for determining planning applications upon local planning authorities. By section 101 of the Local Government Act 1972 (“the 1972 Act”) such authorities are empowered, subject to any express provision in the Act, to discharge any of their functions by delegating them to a committee, sub-committee or to an identified officer or officers.

A local planning authority, when making any planning determination, was required by section 54A of the 1990 Act, (Footnote: ²) to have regard to the local development plan and to make the determination in accordance with the plan unless material considerations indicated otherwise. And, by an overlapping provision in section 70(2) of the 1990 Act, it was required, in dealing with a planning application, to have regard to the provisions of the development plan material to the application and to “any other material considerations”. The weight of each material consideration was and is a matter for the planning decision-maker, as Lord Hoffmann stated in the following much cited passage from his speech in Tesco Stores v Environment Secretary [1995] 1 WLR 759 at 780, HL, at 780F-G:

In any particular case involving the inter-play of a policy indicated in a development plan and other material considerations, there may be more than one acceptable interpretation in planning terms of a policy indicated by the plan, and more than one “correct” application of it when set against the other considerations. A planning decision maker’s approach to policy will only be interfered with by the court if it goes beyond the range of reasonable meanings that can be given to the language used; see R v Derbyshire County Council, ex parte Woods [1997] JPL 958, CA, per Brooke LJ at 967-968:

The Council adopted a scheme of delegation and allocation of its delegated powers under the 1990 Act between its Planning Committee and officers. The scheme included the following in the category of matters reserved to the Planning Committee:

The planning application in the present case was determined by an officer in purported exercise of the delegated power derived from the exception in paragraph (iv) (c). The question is whether, having regard to the terms of the guidance and the circumstances of the case, it was open to him to conclude that the proposal accorded with the Council’s Supplementary Planning Guidance, in particular its presumption against the demolition of building designated under its provisions as “of townscape merit”. As to the latter, the Council’s Development Plan, in its First Review Deposit Draft, provided:

The relevant passage of the Guidance was in the following terms:

I take the chronology and summary of the facts as to the nature and form of Mr Springhall’s objection to the planning application and of the Council’s treatment of it from the helpful narrative provided by Richards J in paragraphs 8 to 12 of his judgment.

On 13^th November 2003, the Council wrote to Mr Springhall notifying him of the planning application for the demolition of “Ripple” and for its replacement with a new building, and inviting his views on it. Mr Springhall replied by letter, objecting to the proposal. In the letter, he drew attention to the status of the existing building on the site as one of townscape merit and to its location within the townscape area and to the presumption against demolition set out in the Supplementary Planning Guidance. He contended that the proposed development by way of a replacement building was unacceptable in scale and detail and drew attention to the effect that grant of permission would have on his own adjacent property and on his privacy. He did not indicate a wish to address the Planning Committee.

The planning application was the subject of an officer’s decision approving the grant of permission, made purportedly under the exception in sub-paragraph (iv) (c) of the Council’s scheme of delegation for applications according with any supplementary planning guidance of the Council. The officer, in a report described as a “delegated report” and, seemingly, containing his decision, gave as his reason that the proposal complied with the Council’s Supplementary Planning Guidance ‘for Small Housing Sites’ and ‘Buildings of Townscape Merit’. The report indicated that the existing property on the application site had been classified as a building of townscape merit and was located in a conservation area. It referred to and summarised Mr Springhall’s written objections, and mentioned that there had been no request for the matter to be put before the Planning Committee. It identified the main matters for consideration as design/conservation area considerations, the impact on neighbouring amenities and the impact on flooding. In its treatment of those considerations, the report contained the following passages:

As I have said, the main issue before the Judge was whether the officer’s exercise of the power to make the decision in this case fell within the exception of the requirement in sub-paragraph (iv) (c) of the Council’s scheme of delegation, for reference to the Planning Committee of a recommendation contrary to the submitted views of third parties, namely where, in the absence of an indication by any interested party of a wish to address the Planning Committee, an application accords with any supplementary planning guidance. If it was not in accord with such guidance, the decision of the officer was ultra vires.

Mr Springhall’s case was that the proposal to demolish “Ripple” was contrary to the presumption in the supplementary planning guidance in question against demolition of buildings of “Townscape Merit” and, that given the possibility of refurbishment and extension of the existing building, the presumption was not displaced in the circumstances of this case. He maintained that, in the light of that possibility: 1) it was unreasonable of the officer, acting on behalf of the Council, to regard the proposal as according with the guidance; or 2) at the very least, given his, Mr Springhall’s written objection, if there was any ambiguity about the guidance he should have referred the application to the Planning Committee for decision. He relied upon the reasoning of this Court in Carlton-Conway, in which there was a similar, but more loosely expressed, provision than that in this case, namely for retention of the matter by the planning committee except where the proposal did not conflict with “agreed policies, standards and guidelines”. Pill LJ, who gave the leading judgment, with which Robert Walker LJ (as he then was) and Sir Martin Nourse agreed, held, at paragraphs 21, 22, 24 and 25, that such an exception could only apply where there is clarity as to the policies and facts, and that, as neither was clear in that case, the planning officer, in granting permission, acted beyond his powers.

Before I continue further with Mr Springhall’s case, I should set out verbatim paragraph 1.9 - the relevant provision – of the scheme of delegation under consideration in Carlton-Conway and paragraphs 21, 22, 24 and 25 of Pill LJ’s judgment:

Paragraph 1.9 provided for retention of the matter by the planning committee:

Paragraphs 21, 22, 24 and 25 of Pill LJ’s judgment read:

The Council maintained, in addition to other distinctions between that case and this, that there was no ambiguity here about the policy in question or the facts to which it was to be applied.

Richards J, in his judgment, considered the scheme of delegation and the decision-making process in the present case and compared them with those in Carlton-Conway. He held that the planning officer was reasonably entitled to conclude that the proposal accorded with the Supplementary Planning Guidance and that such a conclusion was itself a matter of planning judgment not susceptible to interference by the court, save, on Wednesbury grounds. This is how he explained that conclusion in paragraphs 31 to 35 of his judgment:

In my view, the officer had clearly in mind what is said in the guidance about a presumption against demolition. It is clear from the guidance that this is not an irrebuttable presumption, but that the guidance contemplates that consent will be granted where retention and adaptation is not possible and the proposed replacement meets other requirements. The officer plainly had that in mind too.

Equally plainly, the reason why the cost differential and the intrinsic problems about the existing building are examined is that the officer is addressing the question whether retention and adaptation are possible within the terms of the guidance. He concludes that they are not, thus the view that the proposal complies with the guidance. In reaching that view, he must have proceeded on the basis that the reference in the guidance to the possibility of retention and adaptation was to realistic or reasonable possibility, rather than simply to whether it could or could not physically be done. In my judgment, that fell within the range of meanings of the policy that was reasonably open.

Equally, I take the view that, on the facts, it was reasonably open to the officer to conclude that retention and adaptation was not possible and that the proposal fell within the range of circumstances in which, notwithstanding the presumption against demolition, the guidance permitted demolition and replacement.

Accordingly, I hold that the officer was reasonably entitled to conclude that the proposal was in accordance with the supplementary planning guidance. That being so, and there being no request to address the Planning Committee, it could lawfully be dealt with under delegated powers. …”

In so holding, Richards J found and had regard to the following distinctions between Carlton-Conway and this case: 1) in Carlton-Conway, the relevant policy had to be agreed and there was real doubt as to a material term of it, whereas here the applicable policy and its terms were clear; 2) in Carlton-Conway, there was no evidence that the officer had genuinely and carefully considered at the time of deciding the matter whether it was delegable to him, whereas here the officer’s contemporaneous report shows that he did consider that question at the material time; 3) in Carlton-Conway, there was no contemporaneous evidence of the officer’s approach or reason for his decision, whereas here the officer accompanied his decision with a reasoned report; 4) in Carton-Conway, there was general lack of clarity as to the applicable policies and the facts and as to why the officer considered that the former were complied with, whereas here there was no such doubt. As to Pill LJ’s observation in paragraph 25 of his judgment Carlton-Conway of the need for circumspection in the exercise of powers “delegated in the terms they were in …[that] case”, Richards J commented, at paragraph 30 of his judgment:

Richards J, in granting Mr Springhall permission to appeal on this issue, did so because: 1) he thought it arguable that the judgment is in Conway-Carlton wider in scope than he had read it; and 2) because he considered, having regard to the apparent growth in importance of the use of delegated powers in the planning field, it would, in any event, be useful for the matter to be clarified by a further decision of the Court of Appeal.

As I have said, the issue of delegation, in its application to the circumstances of the case, has been presented to the Court in the form of three sub-issues, the first and most important of which is whether an officer should purport to exercise delegated power where, in Pill LJ’s words, “there are real issues as to the meaning of planning policies and as to their application to the facts of the case”.

Mr Meyric Lewis, on behalf of Mr Springhall, made two overlapping submissions largely on the strength of Pill LJ’s reasoning in Carlton-Conway and on certain dicta in R(Kides) v South Cambridgeshire District Council [2003] JPL 431, in which the issues were far removed from those here: 1) a planning officer considering whether to exercise delegated power in the making of a planning decision, should exercise great caution before doing so in a case where the relevant planning policies and the facts are not clear; and 2) he should not exercise delegated power unless he is sure in the light of the relevant policies and facts that he can properly do so; in particular, where there is a policy presumption against the planning proposal, he should not consider whether, as a matter of planning judgment, it is rebutted.

It is implicit in those submissions of Mr Lewis that the courts can intervene in some way short of their Wednesbury jurisdiction wherever a planning officer’s decision to exercise delegated power is, in the light of the relevant policies and facts, questionable. Put another way, he submitted that an interested party to a planning application has a “fairly low threshold” of entitlement to a decision by a planning committee on applications putatively coming within a planning authority’s scheme of delegation. He submitted that Richards J wrongly confined the scope of Pill LJ’s judgment in Carlton-Conway to the facts of the case and wrongly held that it did not lay down a general principle that if there is a real issue as to the meaning or application of a policy, it should be referred to the planning committee. The policy behind, and the justification for, such a general rule, Mr Lewis maintained, was intimated by Pill LJ in the opening words of paragraph 21 of his judgment (paragraph 18 above), namely: the interest of the public and the importance of its involvement in the planning control process; the important procedural differences in that respect between public decision-making by committee and by its officers; and the fact that the only effective right of appeal available to third parties is by way of judicial review.

Building on that submission, Mr Lewis contended that the circumstances in Carlton-Conway were merely an example of the application of a general rule to be derived from Pill LJ’s judgment, and that they were not materially different from those in the scheme of delegation under consideration here. He drew attention to factors, which, he contended, are common to both cases. He suggested that Mr Springhall, in raising the important issue of possible retention of the existing building on the site, had raised real doubts on a question central to the applicability of the presumption against demolition in the Development Plan and the Supplementary Planning Guidance, namely as to whether, in the terms of the Council’s policies (see paragraphs 9 and 10 above), it was “necessary” to demolish or whether “retention and adaptation is not possible”. He maintained that there were real doubts as to the rigour of those requirements and their application to the meaning of demolition, and that there were issues and real doubts as to the facts in this case.

Mr Daniel Kolinsky, on behalf of the Council, argued in support of Richards J’s conclusion and his reasons, in particular as to the limitation of the decision in Carlton-Conway to its facts and to the materially distinguishable facts of this case. He drew attention to the distinguishing features identified and relied upon by the Judge:

The difference in the wording of the scheme of delegation, in particular, the reference in the Carlton-Conway scheme to conflict with “agreed policies …” .

The absence in Carlton-Conway of contemporaneous evidence of the basis on which the officer had decided to exercise the delegated power; whereas, here, the officer’s report shows that, in the exercise of the power and in approving the application, he took into account Mr Springhall’s objections, had at the forefront of his mind the presumption against demolition and its application to the scheme of delegation, and was satisfied that it was appropriate for his determination under delegated powers.

In Carlton-Conway there was very real uncertainty as to the meaning of the material planning policies and as to the relationship between them; whereas, here, there is no dispute as to what the material planning guidance said or what it meant or did not mean: as to the meaning of the guidance, in particular as to what was meant by the necessity or impossibility of demolition, it could not have been that the existence of presumption rendered demolition in every case contrary to policy; the policy plainly contemplated the possibility of circumstances in which the presumption could be rebutted and demolition would be acceptable.

In Carlton-Conway there was confusion or dispute as to the description or underlying facts of the proposed development, which was not the case here.

In Carlton-Conway Pill LJ considered that the only rational decision for the officer in that case would have been to decline to exercise delegated jurisdiction and to refer the matter to the planning committee. Richards J held, rightly in my view, that that decision does not compel the same result in the present case where there is no such uncertainty about the applicable planning policies and the facts to which they had to be applied and where it is plain that the officer had both well in mind in deciding whether to decide the matter for himself and to grant approval.

Mr Lewis’ attempt to extend the reach of the decision of Carlton-Conway to the more clearly expressed policies and undisputed material facts of this case cannot be reconciled with the clear authority of the Court of Appeal in Woods and of Lord Hoffmann in Tesco. Unless the decision-maker attaches a meaning to the words of a planning policy that they cannot reasonably bear, it is not for a court to substitute its own interpretation of the policy. And the application of such policy to the facts of any particular case is a matter of planning judgment for the decision maker, subject only to considerations of Wednesbury irrationality.

Here, for the reasons summarised by Mr Kolinsky, the policies in play are clear. To the extent that the rebuttability of the presumption against demolition of a building of townscape merit turned on “necessity” for demolition or the “impossibility” of its retention and adaptation when considered against replacement, that was, in my view, essentially a matter for planning judgment on the facts of the case, whether decided by an officer exercising delegated powers or by the Planning Committee. Accordingly, I reject Mr Lewis’s submission that, if the officer, when considering whether to exercise delegated power, is not sure that the proposed development satisfied the local policy he should decline jurisdiction and that a court should quash his decision if he does not do so. To adopt such a test would or could involve the court exercising a form of planning judgment in challenges to an officer’s exercise of the delegated power, whereas its only right to intervene, whoever makes the planning decision, is on grounds of Wednesbury irrationality. It is plain from the officer’s wording of his report in this case that he had the highly fact-sensitive notion of “impossibility” of retention and adaptation well in mind, necessarily including in this context relevant economic and environmental and aesthetic considerations . That was a matter for his planning judgment, not a matter of law. But even if it were a matter of law, in my view, the officer’s interpretation and application of it was one that the words of the policy were properly capable of bearing.

I also reject Mr Lewis’s arguments that, if the proposed development does not fall in line with the local planning policy presumption, the presumption is rarely, if at all, rebuttable, that the officer should not go on to consider whether it is rebuttable, that the development should be regarded as contrary to the policy and should, on that account, be left to the council committee.

In my view, it is for local planning authorities to determine the policy or basis of their schemes of delegation, not for courts to gloss them by imposing fetters on them according to the courts’ perception of how the decision-making should be allocated between the council committee and the officer, e.g. according to whether there is an issue as to policy or fact, simplicity/complexity, seriousness or sensitivity or general public importance. Moreover, as Mr Kolinsky pointed out, the very use of the notion of a presumption against development in the wording of the Council’s relevant policies contains within it an acceptance that, even when capable of application, it may, as a matter of planning judgment, be rebutted by the circumstances. Again, I can see no basis upon which the Court could properly interfere with an officer’s decision on that account.

The question of interpretation and application of local planning policies, including the effect to be given to any presumption in them, on the facts of each case goes primarily to the decision whether or not to grant planning permission, not to some threshold question whether an officer should decide for himself whether to exercise delegated power to grant or refuse permission. If such grant or refusal is found to have been wrong in law because of an incorrect interpretation by the officer of the policy and/or because of a Wednesbury misapplication of it to the facts, that may or may not also taint the officer’s decision to exercise delegated jurisdiction, but the planning decision will, in any event - as in Carlton-Conway - be susceptible to judicial review on conventional grounds. But, if and to the extent that Pill LJ contemplated, in paragraph 25 of his judgment, that some special, modified Wednesbury rule should apply to the question of vires of an officer purportedly exercising such jurisdiction in planning matters, as distinct from a question of conventional Wednesbury irrationality or other illegality of the decision itself, I respectfully disagree. In particular, I endorse the observation of Richards J in paragraph 30 of his judgment (see paragraph 21 above) that Pill LJ’s judgment should not be read as laying down any general principle that where there is any real issue about the meaning or application of a planning policy, it is unlawful for an officer to exercise delegated powers of decision–making.

Whilst I am conscious of the important interest of public participation in planning decisions, to which Pill LJ rightly referred in paragraph 21 of his judgment, there is also a strong public interest in the efficient and timely administration of planning control. Parliament, by section 101 of the 1972 Act, has left to local planning authorities how they may discharge their decision-making role in planning matters. Given their extensive delegation of such role, it would be contrary to both public and private interests and cause much delay and expense to subject the system to what could routinely develop into a two-stage challenge of officer decisions. If an officer, assuming delegated powers for the purpose, demonstrates by his conduct or decision that his planning decision is irrational or otherwise unlawful, whether or not it impinges on his decision to deal with the matter himself, the matter is, in any event, remediable by a single judicial review challenge. Mr Lewis’s proposed extension of the Carlton-Conway decision into a general principle does not provide any workable basis for distinguishing between those cases that are determinable under delegated powers and those that must be referred to committee. By contrast, as Mr Kolinsky submitted, the approach of Richards J sets a workable boundary by acknowledging that there will often be more than one perspective as to whether a proposed development would comply with planning policy. Where there is a scheme of delegation, as in this case, the decision of the officer is a planning judgment. The only realistic way in which such a judgment – whoever makes it - can be challenged is on grounds of irrationality, as was the case in the Carlton-Conway, or other illegality, neither of which obtains here.

Accordingly, I am of the view that Pill LJ’s concerns, as expressed by him in paragraphs 24 and 25 of his judgment, while valid in the circumstances of the case before him, in the sense that they went to the legality and rationality of the officer’s decisions both not to refer the matter to the planning committee and to grant permission, should not be taken as a general rule that a planning officer should, as a matter of course, decline to exercise delegated powers available to him only where relevant policies and facts are clear. Equally, I reject Mr Lewis’s argument that an officer’s task in exercising delegated decision-making powers is a “threshold” exercise. His task is the same as that of the planning committee if the matter had been retained by or referred to them, namely whether to grant or refuse planning permission. If an officer is of the view that he can make sense of the policies and identify the relevant facts so as to enable him to apply the former to the latter, there is no basis, short of illegality or Wednesbury irrationality, why the courts should intrude further on the arrangements local planning authorities make for their decision-making.

These so-called sub-issues, which I have in large part already considered, may be dealt with together. They are as to whether the officer’s decision in exercising delegated decision-making powers accorded with the Council’s policies that there should be no demolition of a building of townscape merit unless it was necessary because its retention and adaptation were impossible. Put at its lowest, Mr Lewis said that was a matter of interpretation for the Planning Committee rather than the officer. But he put Mr Springhall’s case more highly than that. He submitted that the presumption in the Development Plan against demolition of buildings of townscape merit, could only be rebutted if demolition was necessary in the strict sense indicated for listed buildings in PPG15, paragraphs 3.16 – 3.19, which was not the case here. On the facts, retention and adaptation were possible and only marginally more expensive than demolition and re-building. Accordingly, he submitted that the proposed demolition of “Ripple” was per se contrary to the Development Plan and therefore, fell within paragraph (iii) of the Council’s scheme of delegation, as one that would “significantly depart… from the provisions of the adopted Development Plan or interim policies”, including its Supplementary Planning Guidance, and, therefore required reservation to the Planning Committee.

It follows, Mr Lewis submitted, that Richards J wrongly held that the question whether the proposal accorded with the Development Plan and Supplementary Planning Guidance was a matter of planning judgment for the officer subject to interference by the courts only on Wednesbury grounds. He pointed out that the policy in Carlton-Conway was importantly different from that here in that it did not contain any presumption against the proposed development and that Tesco and Woods were not concerned with whether a planning officer had made a decision outside his powers under a scheme of delegation or where there was a clear policy presumption against the development in question.

Mr Kolinsky submitted that the flaw in Mr Lewis’s analysis was the premise that the demolition of “Ripple” was per se contrary to the Development Plan, when all that the Plan and the Guidance provided was a presumption against demolition of buildings of townscape merit. He pointed out that there was nothing in the policy to suggest that the presumption was irrebuttable and submitted that the very use of the notion of a presumption contemplated circumstances in which the demolition of a building of townscape merit may yet be appropriate and accord with policy.

These submissions of Mr Lewis largely overlap with those with which I have dealt and rejected under sub-issue (1). As must be apparent from my discussion of that sub-issue, I respectfully endorse the reasoning of Richards J in paragraphs 31 to 35 of his judgment (see paragraph 20 above) as to the nature of the officer’s exercise of delegated power in this case, essentially one of planning judgment impugnable only on Wednesbury grounds. As I have said, Mr Lewis’s submissions overlook the fact that the Supplementary Guidance, which effectively reproduces the Development Plan, necessarily envisaged circumstances in which, notwithstanding the general presumption against demolition of a building of townscape merit, such demolition could conform with the Plan and the Guidance in certain circumstances. In that event, demolition would accord with the Council’s planning policies, not conflict with them.

And, as the Court indicated in Woods, the interpretation and application of planning policy will frequently raise questions of planning judgment for the decision maker, including whether the proposal constitutes a significant departure from planning policy. It is clear from the officer’s report in this case that he addressed the policy presumption against demolition but found that in the particular circumstances of the case, demolition was appropriate and hence accorded with the Council’s policies. In my view, and for the reasons I have given, that was a decision that was open to him on the policies and other facts in this case and was certainly not challengeable on Wednesbury grounds as to jurisdiction or as a planning decision.

I would, therefore, dismiss the appeal.

I agree that the appeal should be dismissed for the reasons given by Auld LJ.

I also agree.