Godfrey, R (on the application of) v Southwark

This is an appeal by Mr Tom Godfrey (“the appellant”) against the refusal of Lindblom J to permit the appellant to proceed with a claim for judicial review brought by the appellant. The appellant seeks to quash a planning permission granted on 26 May 2010 by the London Borough of Southwark (“the council”) to BDW Trading Ltd (“the Interested Party”) for a mixed-use development on a site known as Downtown on the Rotherhithe Peninsular in East London. In its reasons for granting planning permission, the council referred to “a number of important benefits”. These included the provision of a new better quality health centre and the provision of a community centre.

An application for permission to apply for judicial review having been refused on a consideration of the papers, it was renewed before Lindblom J on 8 June 2011. The judge refused permission and the appellant challenges that refusal by permission of Carnwath LJ. The issue before the court is whether the appellant should have permission to proceed with his claim for judicial review.

The site was formerly the site of a district centre providing community services which included a stand-alone community hall with 413 square metres of floor space. The council marked it for redevelopment and prepared a project brief, described as the Downtown Brief, in April 2002. That provided, at paragraph 4.1, that the developer would be expected to carry out improvements to or to create new infrastructure that may include financing and building “a new community hall on site if the existing hall site is to be redeveloped”.

There were two unsuccessful applications for planning permission by the Interested Party. In the event, the permission granted years later in 2010 included permission for a community centre with a floor space of 124 square metres. This is not free standing but contained within the Health Centre building. The application to quash is based on the alleged lack of appropriate provision for a community centre.

The claim is based on the council’s failure to give effect to an understanding in relation to the provision of a community centre as a part of the proposed development. It was submitted that the council has failed to take account of a material planning consideration, the project brief, and that the council has not implemented its own policy 7P. Further, there was a substantive legitimate expectation that better facilities would be provided than have been provided by the permission. Reliance is placed on documents issued by the council in 2002 and 2003 and discussions which took place at that time between council officers and local residents. The three grounds are interrelated.

In addition to paragraph 4.1 of the project brief, a preferred bidder report of 29 July 2003 provided that “a new community hall will be re-provided within the comprehensive development.” The project brief referred to provision of “a community hall for all local residents that addresses local needs in consultation with the community.”

In a written statement for the purpose of these proceedings, Mr Cornish, Chairman of the Downtown Defence Campaign (“DDC”) referred to a well-attended meeting arranged by the council in November 2001. A liaison group to be known as Downtown Advisory and Assessment Panel (“DAAP”) was set up at the council’s initiative and held monthly meetings, attended by a council officer, Mr Mayne. It was claimed that Mr Mayne promised that the council intended to require the developer of the site to re-provide a purpose-built community centre that would be larger than the centre then existing.

Ms Whittam, also a member of DAAP, said that the Panel was always led to believe that a replacement building would be provided. There would be a new, larger Health Centre and a new Community Centre. A Downtown Community Facility outline specification, issued by the council in September 2003, included a main hall with a floor area of 425 square metres.

An officer’s report dated 29 July 2003 referred to the main objectives for the comprehensive redevelopment as including:

“To re-provide a community hall for all local residents that addresses local needs in consultation with the community.”

The report did refer to the still existing hall as “surplus to requirements” but I do not regard that as an indication that there were not community demands and needs for an appropriate facility. The hall was plainly in very poor condition and was demolished in September 2003.

There were two tenderers, the Interested Party and Lavender Moorings. The Interested Party proposed that there would be an “800 square metre flexible multi-purpose hall.” Lavender Moorings proposed a much smaller hall of 221 square metres but with a health club open to the public in the proposed Health Centre.

The Interested Party applied for planning permission in September 2004, their application including a stand-alone multi-purpose community hall with a floor area of 945 square metres. The Interested Party appealed to the Secretary of State against a deemed refusal of planning permission by the council. Following a local public inquiry, the Inspector recommended that the appeal be dismissed. The Inspector found that the proposed residential block A/B would unacceptably harm the character of the local area and be detrimental to the visual amenities. The Inspector referred, at paragraph 27, to the design of the proposal being developed following consultation with local residents and recorded that the design of the proposal was said to be “guided by the specific objectives of the project brief for the site.”

I do not consider that these statements in the section of the Inspector’s report headed ‘other agreed facts’, elevates the project brief to the status of a material planning consideration. It did not appear on her list of planning policy documents. The statement was no more than an explanation of the design of the proposal then made.

By letter of 8 August 2006, the Secretary of State disagreed with the Inspector’s recommendation and granted planning permission. The grant was, however, quashed by consent in the High Court for lack of reasoning in the decision letter.

A further application for planning permission, which included provision for a multi-purpose community hall of 945 square metres, was refused on design and environmental grounds on 16 November 2007. The present application was made on 20 June 2008 and was considered in the light of the officer’s reports dated 24 June 2008 and 12 January 2010. As stated, it provided for a community centre of 124 square metres. This was not freestanding but contained within the health centre building.

Under the heading “Improving the Health of the Borough” the officer’s report of 24 June 2008 stated:

“The creation of a new health centre, significantly larger than its predecessor will provide a greatly improved service for the residents of Rotherhithe. The existing doctor’s surgeries and dentist will be able to expand and the PCT will be able to provide additional crucial health services from the new premises. Approval of this recommendation will play a major role in securing access to state of the art primary health care services for residents of Rotherhithe for decades to come.

Community meeting room facilities will also be provided within the new health centre.”

In the meantime, in July 2007, the Southwark Plan had been adopted as the Unitary Development Plan (“UDP”) following a report by an Inspector appointed by the Secretary of State. It made provision for a “schedule of all designated proposal sites.” In that schedule, it was stated that the uses required at Downtown were:

“D Use classes including a Community Centre and a health centre C3 Use Class.”

The residential capacity was put at 251 units. D2 Use Class was rightly said to include “assembly and leisure uses”.

A further officer’s report was submitted to the Planning Committee on 12 January 2010. That referred to the proposed community area as being 124 square metres in area and described its proposed availability for local community use. In a report recommending the grant of permission, the community centre provision was explained in this way:

“248.

A new community centre has been part of all three planning applications for the development of this site, and consistent with the proposed use designated for this site in the UDP. However, following the provision of facilities at Redriff School, the previously proposed Crèche on this site was no longer needed. As this was to fund the running of a new community hall, an alternative solution was needed to meet the need for a community facility on this site. Provision of space with the new health centre building would achieve this need.

249.

In response to the previous comments raised at the planning committee meeting in November 2008, the proposed community centre has been increased in size to 124m² (from 101m²) and will include a larger community space which can be utilised for a range of activities and functions by both the GP Practices and local community groups. It will operate as a shared facility, available for use by both local organisations and the PCT and doctors practices, during the official opening hours of the Health Centre ensuring that it is fully utilised at different times of the day.

250.

The proposed community centre incorporates a multi-functional hall which extends to 92m². This is larger than previously and will be capable of being used for a whole range of activities and uses. It will be capable of being used to hold a meeting or presentation of up to 132 people which should cater for the needs of the majority of local groups surrounding the site. A range of options for the internal layout and arrangements have been provided as illustrations with this application.

251.

The new community centre will benefit from its own secure access point and entrance lobby which will allow the remainder of the health centre to be secured outside core opening hours and enable the community centre to operate independently. It will also have full access to own kitchen, toilet and store facilities.

252.

A report on the Proposed Community Centre appended to the Planning Statement, demonstrated that enlarging the community centre further would have a significant impact on the viability of the health centre. For example, the provision of a further 76m² of floorspace for the community centre area would be equivalent to the loss of 5 consulting/examination rooms (measuring 15m² each). This would have a significant impact on the level and type of health care the new centre is able to offer the local community.

253.

Whilst it is right that the size of the community centre has been significantly reduced from the position in respect of the first and second planning applications, officers consider that the size of the community centre proposed in the present application is sufficient to constitute a beneficial community resource. It should be noted that the UDP proposed 7P contains no specific size requirement for the community centre. Neither is it necessary for the community centre to be a separate freestanding building. Officers consider that the size of the facility and the commitments in respect of its availability for community use to be secured by s.106 agreement (as indicated in paragraph 16 of this report) make it fit for purpose as a valuable community resource and comply with the UDP proposal.”

There was also a comprehensive environmental statement dated August 2009. Amongst other things, that analysed community facilities located between 1 and 3 kilometres from the site. The conclusion, at 12.3.14, was that “the project site is located in an area of the Borough with far greater accessibility to community facilities than is the norm.”

The Statement of Community Involvement issued by the council in relation to the development referred to the “considerable local interest and different phases of community consultation.” It was stated that the approach had been to consult with the council and other elected members on the most appropriate way forward to ensure, amongst other things, that “the consultation methods used were appropriate to the community being engaged.”

Objections were made and the appellant’s submission to the council, dated 28 October 2009, described the re-provision by way of a community centre as “wholly inadequate”. All previous applications, he said, had proposed “a reinstatement of an equal matching community facility.” It was also stated that “it is not appropriate to embed a community facility within the health centre.”

The report to Committee also included comments on consultation responses and referred to the proposed community centre. It was stated:

“308.

Reference has also been made to the size of the community hall being much smaller than previously proposed community centre and that this is considered to be an ‘unacceptable loss of a pre-existing community benefit’. Although the applications submitted in 2004 and 2007 both included a community centre of 945m², neither of these applications have planning permission and therefore it cannot be said that there has been a loss of an existing community centre.

309.

There was previously a community facility on part of the site it was declared surplus to requirements by the Council in 2003 and demolished for safety reasons. The size of the previous community building from an OS Site Plan as 413m².

310.

The proposed community centre will provide a modern flexible space which will be available for use by members of the local community for a wide range of uses and activities.

311.

As has already been indicated, proposal 7P of the UDP does not contain any size requirement for the community centre. Officers consider that the proposed community centre will be a beneficial community resource and that the proposal accords with the UDP in this respect.”

In a supplementary report of the same date, the provision for “community space” was again considered, at paragraph 6:

“Changes in the community space provision are set out in paragraphs 306 – 311 on the report. Whilst, the new Community facility may be smaller in total area than the previous building before it became derelict and demolished, the main issue is whether the new facility meets current needs. The new facility will be 124m² and capable of a variety of different uses and layouts. From all the information available the new premises should be able to meet current local demand and provide a useful facility for the future. As stated in the main report, officers consider that the community facility complies with proposal 7P of the UDP.”

On behalf of the appellant, Mr Dove QC submitted that the officer’s report of 12 January 2010 was defective in its failure to make reference to the project brief and to the discussions in and about 2002. These amounted to a material consideration which has not been considered by the council. Mr Dove referred to the lengths to which the council went when consulting upon the development in 2001 and 2002. DAAP was established and there was evidence from its members that the council would re-provide a community hall as part of any redevelopment. That was stated in the project brief and in the preferred bidder report. The contents of the project brief of 2002 should have been brought to the attention of the Planning Committee as should the discussions and assurances given in and about 2002 when community needs had been assessed. Members should have approached the planning issues with the project brief and earlier public consultation in mind.

Regard had been paid to the wishes of the community at the earlier stage; the same practice should have been followed in response to the later application. The only thing that had changed was the council’s different arrangement with the Interested Party in 2008 compared with 2003. Had members of the Committee known of the community involvement and needs expressed in 2002, they might have reached a different decision on the application. These were matters which ought to have been taken into account and, had they been taken into account, and applying the test stated by Glidewell LJ in Bolton MBC v Secretary of State for the Environment and Another [1991] 61 P & CR 343 at 352 – 354, “might well have made a difference” to the decision.

The appellant sought disclosure of the development agreements entered into between the council, as landowner, and the Interested Party in 2003 and 2008. It was claimed that to the extent the 2003 agreement confirms a commitment to provide a community hall it is material to the issues before the court. Further, it was claimed that a comparison between the 2003 terms and 2008 terms in relation to the community centre would enable the council to consider what has “moved on” during the intervening period. In the absence of disclosure, the council should not be permitted to rely on the 2008 agreement.

The submission on ground 2 was brief, though elaborated in post-hearing written submissions referring to Tesco Stores Ltd v Dundee City Council [2012] UKSC 13. It was submitted that, in interpreting UDP 7P, it was necessary to consider the history of the proposal, including what was said in the project brief which underlay the policy. The history should have been used as an aid to interpreting the policy and was the policy behind the policy.

The appellant’s third submission, based on a substantive legitimate expectation, relies on the events of 2002 in a somewhat different way. It was submitted that at that time there was a close and specific engagement by the council with the local community as a result of which a consensus was forged between the council and a limited class of people, the local community, in relation to the specific project. Further, the project brief and preferred bidder report were statements of the council’s policy in relation to the development of the site.

As landowner, the council was able to make a commitment. An understanding was achieved in 2002 that there would be a freestanding community hall in the development at least as large as the existing hall. That was a given requirement in any grant of planning permission subsequently made and a substantive legitimate expectation.

It was submitted that all that had changed by 2008 was that the council had renegotiated terms with the proposed developer. It had not been suggested in 2002 that the community facilities to be provided would depend on what the developer was prepared to offer.

Reliance was placed on the decision of this court in R (on the application of Murphy & Others) v The Independent Assessor and R (on the application of Niaza & Others) v The Secretary of State [2008] EWCA Civ 755, the Master of the Rolls presiding. Giving the leading judgment, with which the Master of the Rolls and Sedley LJ agreed in the result, Laws LJ considered the scope of substantive legitimate expectation. He compared it with procedural legitimate expectation. He stated, at paragraph 33:

“In the procedural case we find a promise or practice of notice or consultation in the event of a contemplated change. In the substantive case we have a promise or practice of present and future substantive policy. This difference is at the core of the distinction between procedural and substantive legitimate expectation.”

Laws LJ added, at paragraph 35:

“In this context, then, the notion of a promise or practice of present and future substantive policy risks proving too much. The doctrine of substantive legitimate expectation plainly cannot apply to every case where a public authority operates a policy over an appreciable period. That would expand the doctrine far beyond its proper limits. The establishment of any policy, new or substitute, by a public body is in principle subject to Wednesbury review. But a claim that a substitute policy has been established in breach of a substantive legitimate expectation engages a much more rigorous standard. It will be adjudged, as I have foreshadowed, by the court's own view of what fairness requires. This is a principal outcome of this court's decision in Ex p Coughlan (see in particular paragraphs 74, 78, 81 and 82). It demonstrates the importance of finding the reach of substantive legitimate expectation.”

The question to be posed was stated by Laws LJ at paragraph 36:

“. . . what are the conditions under which a prior representation, promise or practice by a public decision-maker will give rise to an enforceable expectation of a substantive benefit?”

Laws LJ expressed general conclusions at paragraphs 41 and 42. He stated:

“Public authorities typically, and central government par excellence, enjoy wide discretions which it is their duty to exercise in the public interest.”

“But the court will (subject to the overriding public interest) insist on such a requirement, and enforce such an obligation, where the decision-maker's proposed action would otherwise be so unfair as to amount to an abuse of power, by reason of the way in which it has earlier conducted itself."

Laws LJ added, at paragraph 43:

“. . . it must constitute a specific undertaking, directed at a particular individual or group, by which the relevant policy's continuance is assured. Lord Templeman in Preston referred (866 – 867) to ‘conduct [in that case, of the Commissioners of Inland Revenue] equivalent to a breach of contract or breach of representations’.”

When stating, at paragraph 46, that “the number of beneficiaries of a promise for the purpose of such an expectation, in reality it is likely to be small, if the court is to make the expectation good”, Laws LJ gave, as a second reason:

“. . . the broader the class claiming the expectation's benefit, the more likely it is that a supervening public interest will be held to justify the change of position complained of. In Ex p Begbie I said this (1130G – 1131B) [R v Secretary of State for Education and Employment ex p Begbie [2000] 1 WLR 115]

‘In some cases a change of tack by a public authority, though unfair from the applicant's stance, may involve questions of general policy affecting the public at large or a significant section of it (including interests not represented before the court); here the judges may well be in no position to adjudicate save at most on a bare Wednesbury basis, without themselves donning the garb of policy-maker, which they cannot wear… In other cases the act or omission complained of may take place on a much smaller stage, with far fewer players… The case's facts may be discrete and limited, having no implications for an innominate class of persons. There may be no wide-ranging issues of general policy, or none with multi-layered effects, upon whose merits the court is asked to embark. The court may be able to envisage clearly and with sufficient certainty what the full consequences will be of any order it makes.’”

Reference was also made to the decision of this court in R (on the application of Barker) v Waverley Borough Council and Another [2002] 1 P & CR 6 (Pill, Mantell LJJ and McKinnon J). Having identified the statutory duty, I stated, at paragraph 46:

“The local planning authority . . . were under a duty to consider it in the circumstances existing at the time of the decision. The relevant considerations were set out in the Planning Officer's report. The statutory duty would not be discharged lawfully if one consideration, the length of time for which the condition had persisted, could in law be held to prevail over the duty to have regard to the considerations set out in those sections. The local residents had an expectation that consideration would be given, in any decision taken, to local amenity. Failure to have regard to that material consideration would render a decision liable to be quashed. The expectation did not, however, extend to give legal primacy to that expectation over the duty of the Council to take all material considerations into account.”

The central point made by the council and the Interested Party is that, when considering the 2008 application, the council was obliged to perform its statutory duty under section 70(2) of the Town & Country Planning Act 1990 (“the 1990 Act”) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (“the 2004 Act”). Section 70(2) provides that, in dealing with an application for planning permission, the local planning authority shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations. Section 38(6) provides that if regard is to be had to the development plan for the purpose of any determination to be made under the Planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise. The development for which permission was granted was in accordance with Policy 7P in the development plan and the officer’s report to Committee, in the paragraphs cited at paragraphs 17, 21 and 22 above, provided detailed guidance on current community needs and as to whether the community facilities proposed were adequate and appropriate. It was the current situation which required consideration and an assessment made in 2002 and 2003 could not be parachuted into a 2010 decision.

It was further submitted that discussions in 2002, and the statements of local residents now relied on, do not in any event demonstrate a clear understanding about the size of the proposed community centre. The planning committee judged the material before it. Recent objections were considered, including the claim that the proposed centre of 124 square metres was “wholly inadequate provision”, and replies were given.

The Interested Party submitted that nothing in the project brief contains any promise or commitment to provide a particular type of community hall. It had never been suggested by objectors that the planning brief or the preferred bidder report were material to the council’s determination of the planning application or that these documents set the parameters for the council’s planning decision. The objective underlying those documents was to secure the appointment of a preferred developer for the site.

The council was under a statutory duty to determine the current application on its merits. The committee was right to conclude that Policy 7P did not require the provision of a community centre of any particular size or containing any particular facilities and was entitled to conclude that the development sought was in accordance with Policy 7P. The committee concluded that the proposed community centre would be fit for purpose as a valuable community resource. Having reached the conclusion it did, the committee could not be deflected, by the issues raised, to refuse planning permission.

Reference was made to the preference by a significant number of those who responded to the public consultation in 2002, and to three members of DAAP, for the Lavender Moorings proposal which included a community hall of 212 square metres, very much smaller than the then existing hall, though some community use of the health centre was also contemplated in that proposal.

The appellant’s final statement of objection did not include reference to the size of the community facility and his earlier objection had not alleged that a promise was made in 2002. The appellant’s solicitor’s representation contains only the statement that “the description of the community centre as bigger in relation to the 2008 application is highly misleading as there is no mention of the current provision is significantly reduced from 945 square metres proposed in the earlier applications.” No suggestion was made during the 2009 consultation that the officer’s report was defective in omitting references to the 2002 to 2003 documents and discussions or that there was a legitimate expectation arising from those events that a larger and separate community centre would be provided. The legitimate expectation was never asserted prior to the making of the decision under challenge.

In relation to disclosure, Mr Kolinsky, for the council, disclaimed any reliance on the 2008 agreement. The commercial arrangements between the council, as landowner, and the developer were outside the scope of these proceedings and were not relevant to the planning considerations before the council.

The judge stated, at paragraph 17:

“In simple terms, what the council’s planning committee had to do, and what it did, was to satisfy itself that the proposal before it contained a community centre that was good enough for the purposes for which it was to be provided.”

Policy 7P of the UDP contained no specific size requirement for the community centre. Need was carefully considered by the council officers. The policy does not provide that the provision should be at least as much as had previously existed on the site and, as the judge put it, “there is no hint of it in the UDP itself, either in policy or in text.”

The judge added, at paragraph 20:

“This site, the Downtown site, is the subject of a specific proposal, namely proposal 7P, which envisages a mixed-use development comprising some 250 residential units as well as the Class D uses. It was to this proposal that the council’s local planning [committee] had to direct its mind. In my judgment it did so, and it did so without falling into legal error.”

The second submission before the judge was that the respondents had promised re-provision of the community centre; that was a material consideration for the planning decision but the Planning Committee was not made aware of the commitment. The judge found, first, that there was not in fact a public commitment of the kind claimed. There was no commitment to a community centre of any particular size. The documents do not give rise to any promise or commitment, he held. There was no factual basis, the judge also held, for the legitimate expectation alleged and there never had been such an expectation. The committee had been able to consider the merits of the community facility proposed and did so in the light of representations submitted to it. The judge refused the renewed application to apply for judicial review.

A further submission now made, and not made below, was that the council acted unlawfully when, in June 2008, it agreed to vary the development agreement made with the Interested Party in 2003. It was varied without a further public procurement process in breach of Directive 2004/18/EC and the Public Contracts Regulations 2006 made under it, dealing with the procurement of public contracts. To ensure compliance with EU law, the permission should be quashed.

Reliance is placed on the decision of the European Court of Justice in Pressetext Nachrichtenagentur GmbH v Republik Österreich (Bund) and Others Case C-454/06, at paragraphs 34 and 35:

“34.

In order to ensure transparency of procedures and equal treatment of tenderers, amendments to the provisions of a public contract during the currency of the contract constitute a new award of a contract within the meaning of Directive 92/50 when they are materially different in character from the original contract and, therefore, such as to demonstrate the intention of the parties to renegotiate the essential terms of that contract (see, to that effect, Case C-337/98 Commission v France [2000] ECR I-8377, paragraphs 44 and 46).

35.

An amendment to a public contract during its currency may be regarded as being material when it introduces conditions which, had they been part of the initial award procedure, would have allowed for the admission of tenderers other than those initially admitted or would have allowed for the acceptance of a tender other than the one initially accepted.”

The council and the Interested Party dispute the claim for several reasons. First, it was not raised before the judge, secondly, the council’s decision to amend the development agreement in 2008 was legally distinct from its decision to grant the permission, thirdly, the decision as landowner to amend the development agreement has no bearing on the legality of its decision, as local planning authority, to grant the permission and, fourthly, it is far too late to challenge the legality of a decision taken in 2008. That decision was widely known locally, including by Mr Cornish, the Chairman of DDC. The 2008 decision cannot be challenged under cover of the present proceedings.

I say now that I agree with the council’s and Interested Party’s submissions on that issue. An attempt, at this stage of proceedings, to quash a planning permission of 2010 by reliance on the alleged unlawfulness of a commercial agreement between the council and the Interested Party in 2008 is in my view a non-starter.

We declined to order disclosure of the development agreements between the council and the Interested Party, accepting the council’s submission summarised at paragraph 41.

A rigorous standard is to be applied when a substantive legitimate expectation is claimed on the basis of a representation or promise by a public authority. The duty of public authorities to exercise powers in the public interest must be kept in mind. Only when, in the court’s view, to fail to give effect to the promise would be so unfair as to amount to an abuse of power, should it override other considerations (Murphy). In Begbie, Laws LJ also contemplated situations in which “changes of policy, fuelled by broad conceptions of the public interest, may more readily be accepted as taking precedence over the interests of groups which enjoyed expectations generated by an earlier policy” (1131D).

While the approach to legitimate expectation must be fact sensitive, and the facts in Barker were quite different, that case also demonstrates that an earlier approach of the local planning authority to an issue, even if amounting to a planning policy, cannot have primacy over the statutory duty of the council to assess the current situation.

In determining the application for planning permission, the council was required to perform its statutory duty under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act. Policy 7P of the UDP of 2007 required a community centre as a part of a development at Downtown. The policy did not include a specific requirement as to size. In deciding what provision to make, the council was required to assess current needs, assessment of such needs undoubtedly being a material consideration. With conspicuous care and thoroughness, the officer’s report, at paragraphs 248 to 253 assessed those needs. Regard was paid to other community facilities in the area. The report drew attention to the community centre proposed being significantly reduced in size from that in earlier planning applications. A consultation was conducted. The representations made were adequately summarised and responses stated in the officer’s report to committee.

The appellant’s case rests essentially on the 2002 documents and representations. Probably the appellant’s best point is that the expressions “re-provision” of a community hall, and a “new community hall” appeared in 2002 and 2003 documents. The council’s then proposal was for a facility substantially larger than that included in the permission now challenged. I approach the issues on an assumption that there was an intention in 2002, made known to community representatives, that a large and separate community centre be included in the development.

In my judgment, that falls well below constituting a substantive legitimate expectation. There was a delay of many years before the relevant planning application was considered. In considering it, the council was obliged to have regard to the current development plan which required an assessment of current needs. That was the public duty of the council to the community as a whole and it would have been wrong for the council to have been deflected from performing that duty because a different assessment of community needs had been made and communicated, before the UDP was adopted, in 2002. The 2002 assessment and project are not material considerations in the statutory sense to an assessment made in 2010.

The members of the committee were made aware that a larger community centre had been proposed in earlier applications. The council could not be required to carry forward that earlier assessment, even if accompanied by an understanding conveyed to representatives of the community in 2002, into a material consideration in 2010. Even if such an understanding was conveyed, it could not fetter the discretion of the council in the exercise of its statutory duty in present circumstances. There were competing needs for space in the proposed development and other interests, in addition to the need for a community centre, needed to be considered. It was far from being an abuse of power to assess current needs rather than apply an assessment of needs made many years before.

If the case fails, as in my judgment it does, as a substantive legitimate expectation, it cannot succeed because of the absence of fuller information about 2002 documents and discussions in the officer’s report. Having regard to the current duties of the council, events many years before, if not giving rise to a substantive legitimate expectation, cannot be said to be material considerations which it was the duty of the council to take into account.

At most, the larger community centre which, as members were aware, had been included in previous applications, was part of the planning history and as such a consideration they ‘may’ take into account. (CREEDNZ Inc v Governor General [1981] 1 NZLR 172, 183, approved in In re Findlay [1985] 1 AC 318, 334) The issues were, in my judgment, dealt with admirably in paragraphs 248 to 253 and 308 to 311 of the officer’s report.

Council members may have been in breach of duty had they been deflected from assessing current needs in the light of current planning policies by taking into account earlier proposals which, though discussed with community representatives, did not come to fruition. Council members would have had to have been advised that there was no substantive legitimate expectation and that they should apply policy 7P and apply it on the basis of their assessment of the current needs of the community. Properly advised, fuller consideration of the history by members could not have led to a different decision in this case.

As to the submission on ground 2 (paragraph 26 above), the wording of policy 7P is clear. It is no less clear when read in the context of the UDP as a whole. In the absence of a substantive legitimate expectation, it does not bear a different meaning because projects put forward before it was adopted contemplated provision for a larger community centre. Of course a policy must be construed in its proper context, as Lord Reed stated in Tesco Stores, at paragraph 18. A policy should be “interpreted objectively in accordance with the language used, read as always in its proper context”. That does not, in my view, require the earlier failed proposals to be read into it in the present case. To do so would be to create unacceptable uncertainty and would be wrong. The context is the UDP read as a whole.

Though it is not necessary to the overall conclusion I have reached, I would not disturb the judge’s finding, on the evidence as a whole, that the council’s actions in and about 2003 did not, in any event, amount to a promise or a commitment by the council to a community centre of any particular size. A relevant factor in considering the evidence is the absence of claims during the 2009 consultation that such a promise had been made. I have referred to local reactions to the 2008 proposal at paragraph 40. Further, DDC prepared a detailed and comprehensive “final statement of objections” for the use of the members of the planning committee. It was not suggested in that statement that a promise had been made for a larger community centre. The fifteen page statement included only an oblique reference to the size of the community facility and that was in the context of the debate as to the size of the health centre proposed:

“In reality, as the 1,535 m² new health centre includes the new 124 m² community facility, it will be exactly 553 m² bigger than the existing health centre, which is a true increase of 64.4 %.”

Moreover, there was significant support in 2003, when the promise is said to have been made, for the Lavender Moorings proposal, with a hall very much smaller than that claimed to have been promised. The support included support from three members of DAAP and does not assist the case for a council or public commitment to a much larger hall.

I see no real prospect that, on even fuller consideration, this court would grant relief and quash the planning permission and the application to apply for permission for judicial review must, in my view, be refused. Because of the care with which submissions have been prepared and made, and I hope considered, judgments in this case may be cited even though dealing with a permission application.

I agree.

I also agree.