Smith v Cotswold District Council

David Tack is the owner of Dower Cottage, Barnsley, near Cirencester. Although he is joined in these judicial review proceedings as interested party, that is other than formally a misdescription, because he has taken no active interest in the proceedings at all.

Dower Cottage, his property, is in a conservation area. It has in addition to the cottage a detached garage, and a detached former stable building. Mr Tack has made a number of applications for planning permission to the defendant council, Cotswold District Council.

On 30 September 2005, Mr Tack made an application for planning permission for an extension to the stable building which he had already started. The claimants, who live nearby at Lane Cottage, objected to this in part because no provision, they said, was made for the necessary repositioning of an oil tank. On 23 November 2005, the council granted planning permission for the stable building extension. On 23 February 2006, the claimants applied for permission to bring judicial review proceedings in relation to this grant of planning permission. The grounds included that no proper account had been taken of the problem with the oil tank, and that the council had failed to give any proper reasons.

On 7 November 2006, HHJ Gilbart QC, as a Deputy High Court judge, gave permission on the ground relating to the oil tank on the papers, but refused it on the ground relating to the reasons. On 16 March 2007, Collins J on an oral renewal granted permission on the ground relating to the reasons, and this matter drops out of the picture for today’s purposes. I apprehend that he did so because the claimants already had permission in relation to the oil tank.

Separately from this, on 27 September 2005, Mr Tack applied for planning permission to demolish his detached garage and replace it with a single-storey extension to the cottage itself. The planning committee referred this to a conservation officer, and wanted a site visit. The conservation officer made criticisms of the scheme, but concluded that its impact on the wider conservation area was very limited and said that the proposals could be judged loosely to preserve the area. Approval was reluctantly recommended.

On 11 January 2006, the committee, by a majority of nine to three, determined to grant permission, and this was done by a decision notice on 13^th January 2006.

The claimants sought permission to bring judicial review proceedings of this decision. In summary, their grounds included that the decision was irrational, and that no proper reasons were given. On 16 March 2007, Collins J refused permission, and this is the claimant’s appeal against that refusal, for which Lawrence Collins LJ gave permission.

Collins J rejected the first ground of the challenge (that is to say, the rationality ground) and he said this in paragraphs 4 and 5 of the transcript of his judgment:

“4.

The council was concerned whether the proposed development would adversely affect this conservation area, this being a conservation area. They obtained a report from a conservation team, I think in fact an individual as I understand it. It was hardly an enthusiastic approval of the proposed development. What was said was that it would have some intrusion into the garden area of the neighbouring property, which I assume is that of the claimants although it may not be, but it said that it would have negligible impact on the wider conservation area -- not that it would have no impact, merely that it would have a limited or negligible impact -- and the proportions were not particularly satisfactory. The conclusion was that on balance the proposals were not a good example of the conservative scheme. The original building was being absorbed into a building of markedly greater scale. But the officer went on: ‘I am not however convinced that an appeal could be successfully defended. The proposal would have very limited impact on the character or appearance of the wider conservation area, and hence could be judged loosely to preserve and thereby be in conformity with the relevant section of the Act.”

“5.

It is submitted that that shows that there would be a negative impact, and therefore it is quite impossible to say that it is enhanced. It certainly did not enhance or preserve the character of the conservation area, contrary to the officer’s views. It seems to me that the word “preserve” is one which has to be applied in a manner which accords with a sensible approach, because if one took the view that it meant that nothing could conceivably be regarded as at all adverse to the conservation area could ever be permitted to proceed, there would be very few developments that would be allowed to go ahead. The officer’s view, on balance, that because of the very limited impact this could be judged loosely to preserve, is one which in my view was not wrong in law. Accordingly, as it seems to me, the committee, when they had inspected the site, was entitled in law to conclude that there was no bar to this development because it was in a conservation area.”

Collins J then held that the reasons given in the decision notice were arguably inadequate. I am inclined to agree with that, because the decision notice referred only to a series of policy documents but did not give any substantive reasons which referred to the facts of the application being decided. Collins J then said in paragraph 9 of the transcript of his judgment:

“Having said that, it seems to me that one then has to consider whether, if the matter was sent back, there is any real prospect of there being any change. Mr Spurr submits, and I see the force of it, that the committee are required to consider the specific reasons, it may be that they would give greater thought to the matter and it is not impossible that they might change their approach”.

He reinforced that by saying at paragraph 10 that he had grave doubts whether the reasons challenged would, in the end, result in success. In my view, it is clear that there is in truth no real prospect that it would succeed, and that Collins J marginally understated the point in paragraph 10.

There was, however, he continued, another reason for refusing permission, and that was the claimant’s delay. Judicial review proceedings have to be brought promptly, and in any event within three months of the decision complained of. This claim was started on 10 April 2006, only just within the three month period. Challenges to planning permission should be made promptly because those involved want to be able to go ahead. There was some delay in the council answering a letter of 30 December 2005, but the claimant still took five weeks or so after that had been answered. Accordingly, for reasons of delay, the judge refused permission. He concluded by saying:

“Accordingly, particularly as I am clearly of the view that even though the reasons ground might well be arguable, otherwise the claim is unlikely to succeed, I shall not grant permission for that challenge to continue”.

The grounds of appeal before the court relate only to the judge’s decision on the delay, as to which much learning has been deployed on both sides. But the grounds of appeal do not seek to challenge the judge’s decision that the substantive basis on which it is known that the planning permission was granted was rational and sustainable. There is no challenge to paragraphs 4 and 5 of the judge’s judgment, which I have just read. In these circumstances, it seems to me that a mere reasons challenge is pointless. The only positive result could be that the matter was remitted to the council to give some better reasons, which they would well be able to do, because the judge has decided that their substantive reasons are sustainable.

Mr Pereira, who appears for the appellants before the court today, submits that the amendment to the legislation has reinforced the requirement for reasons. There is good reason, he says, to require a local planning authority to give proper reasons, because focussing their minds might result in a different conclusion, and because, if the court does not support the obligation to give reasons, the obligation to give reasons would be undermined.

I do not accept either of these submissions as turning the result in the present case. Given the material before the court, I consider it to be fanciful in this case to suppose that the committee would reach a different conclusion, considering that Collins J has pronounced the conclusion they did reach to have been rational. As to the general submission, it is quite clear that planning authorities are obliged to give proper summary reasons, and refusing permission in the present case would provide no basis whatever for not doing so. I do not consider that the court should conclude that a mere reasons challenge should succeed in every case, nor that the court should in this case discipline the Cotswold District Council in terrorem in order to encourage others.

I would decide the present case on the facts of the present case only, and in doing so I would not in any way detract from what Sullivan J said in R (Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin). In my judgment, the present case is one where, on the “spectrum of possibility” mentioned by Sullivan J in paragraphs 55 and 69 of his judgment in Wall, I am clear that the present case falls well on the side where the court should not give permission, which would only engender pointless expense.

The same may be said of Collins J’s recent decision in R (Tratt) v Horsham District Council [2007] EWHC 1485 Admin, where he said in paragraph 31 that:

“It is clearly a relevant consideration in exercising discretion in a reasons challenge whether there has been prejudice and perhaps more importantly whether there is a possibility that there might, having regard to all the circumstances, be a different decision were the matter to be reconsidered”.

He went on to say in paragraph 32 that there was an issue in that case which upon reconsideration might lead to a different conclusion.

I would adopt and approve the principles to be found both in Wall and Tratt, but I do not consider that in the present case there is any real possibility that there might be a different decision if the council were required to give proper reasons. In those circumstances, I would accordingly dismiss the appeal for the reasons which I have given, and it becomes unnecessary to address the ground of appeal which seeks to attack the judge’s decision on delay.

I agree.

I agree that this appeal should be dismissed for the reasons given by May LJ. In doing so, I stress that I do not in any way intend to minimise the importance of planning authorities giving reasons for the grant of planning permission, as required by Article 22 of the Town and Country Planning and General Development Procedure Order 1995 in its present form. Where there has been a failure to give reasons which comply with Article 22, on an application to quash the decision granted by planning permission, the court has a discretion whether or not to make such an order. The principles applicable to the exercise of that discretion are, in my opinion, those set out in the cases of Wall and Tratt, to which May LJ has referred. The decision in this appeal turns on the particular facts of this case. For the reasons given by May LJ, I agree that permission to apply for judicial review should be refused on the facts, and that this appeal should be dismissed.