Saunders, R (on the application of) v Tendring District Council & Anor

MR JUSTICE SULLIVAN:

This is an application for judicial review of two decisions of the Tendring District Council ("the defendant") dated 10th June 2003 to grant (a) an approval of details pursuant to an outline planning permission dated 15th August 2002, for 77 dwellings with associated parking, landscaping and open space at the Brickfield site, Una Road, Parkeston ("site A"); and (b) a full planning permission for the creation of 20 parking spaces, sewage pumping station and open space on adjoining land at Una Road ("site B").

Site A is 1.7 hectares in extent and site B, which is to the south-east of site A and rounds off its southern boundary, is 0.2 hectares in extent. The approval of details and the planning permission are linked: the pumping station will serve the 77 dwellings proposed in the approval of details, the open space will be available for use by the occupiers of the proposed dwellings, as well as by existing residents in the locality, and the 2002 outline planning permission contained a condition requiring the provision of 20 car parking spaces for public use. For convenience I will refer to sites A and B collectively as "the site", save where it is necessary to distinguish between them.

In order to understand the planning history of the site it is necessary to explain its geographical location. The site is on the western side of Parkeston at the edge of the residential area that lies to the west of Station Road. Access to the site from Station Road is obtained via two residential culs-de-sac, Una Road and Edward Street, which leads off Una Road.

To the north-north-west of the site is a large refinery complex operated by a Carless Solvents Ltd ("Carless") where there are processes and bulk storage installations. The Carless site contains various flammable liquids and gases and is a "notifiable installation". The site is within the consultation distance from the installation.

By letter dated 15th December 1988 the Health and Safety Executive ("HSE") responded to a consultation in respect of an application for planning permission for residential development on site A:

In due course the defendant refused planning permission on grounds other than safety and an appeal was made to the Secretary of State for the Environment. In a decision letter dated 30th September 1993 an inspector granted outline planning permission for residential development on site A. In paragraph 2 of his decision letter the inspector said:

Safety was not one of the main issues identified by the inspector, although in paragraph 14 he said:

The outline planning permission granted by the inspector did not contain any limit upon the number of dwellings that might be constructed on site A. In this sense, although it was subject to a number of conditions, it was a bare outline permission.

The 1993 outline planning permission was renewed (or, more accurately, fresh outlining permissions were granted containing the same conditions) on 27th January 1998 and 15th August 2002. Although the HSE was not consulted on the application that led to the grant of outline planning permission on 15th August 2002, it had been consulted in relation to the first renewal application and also in respect of an application for approval of details (for 74 dwellings) under the 1998 outline planning permission. The HSE's response to these consultations was to maintain the position set out in its letter dated 15th December 1988.

On 20th August 2002 Barrett Homes Ltd ("the interested party") made an application for approval of reserved matters seeking approval for 71 dwellings on site A, and an application for full planning permission for six dwellings together with associated car parking and a 20-space parking courtyard on site B. In due course these two applications were merged into one application for full planning permission for 77 dwellings on the site.

On 3rd December 2002 this application was reported to the defendant's Development Control Committee with an officer recommendation for approval. Members resolved to defer consideration to enable a site visit to be made. Members visited the site on 18th December. The matter came back before the committee on 2nd January 2003, again with a recommendation for approval, but again members decided to defer consideration to enable another site visit to be made, this time with representatives of the highway authority. The second site visit took place on 16th January. The HSE had been consulted and its reply dated 10th February 2003 said:

On 11th February the committee met again and decided to refuse the application, contrary to their officer's recommendation. The somewhat discursive reasons for refusal were as follows:

On 17th March the interested party appealed against that refusal. The appeal was dealt with by written representations and the council sent its written statement to the inspector on or about 1st May ("the statement"). In view of the manner in which events subsequently unfolded, it is necessary to set out the terms of the statement in some detail. Having described the site and surroundings, the statement summarised the planning history. Referring to the inspector's 1993 decision, it said:

The statement then referred to the renewals of planning permission in 1996 and 2002 and said apropos the later:

After listing numerous policies, "the case for the local planning authority" is set out:

The statement then dealt with what it described as the three primary issues in reverse order, beginning with health and safety issues. Under this heading the statement said, in part:

Having described the existing highway network and its deficiencies (in the defendant's view) in some detail, this part of the statement concluded by saying:

The statement then dealt with the effect of the proposal on the character of the area. It noted that the scheme proposed 77 dwellings on a 1.9 hectare site, of which about 0.25 was to be public open amenity space. This equated to 40 dwellings per hectare.

The statement concluded by saying that the council had carefully examined and considered the implications of the proposed development and weighed the relevant policies, and found:

Pausing there, while the grounds for refusal were somewhat discursive and perhaps a little obscure, they were clarified and amplified in the statement. On any fair reading of the statement as a whole, four things are plain:

Mr Straker QC on behalf of the interested party submitted that the statement was opposing residential development on the site in principle. He relied upon references in the statement to the "nature" of the proposed development. That submission plucks the word "nature" out of context. If the report is read as a whole it is plain that the defendant was objecting, not to residential development on the site in principle, but to the number of dwellings proposed in the application for planning permission and was comparing that number with the 50 dwellings that had been considered in 1993.

On 1st May there were elections in the defendant's district. As a result of those elections the membership of the Development Control Committee changed. The applications made by the interested party in August 2002 had been made in duplicate. After discussions with the defendant it was agreed that the duplicate (undetermined) applications should be amended, so that there were before the Development Control Committee on 10th June two applications: an application for approval of details for 77 dwellings on site A, and a full application for the 20 car parking spaces, public open space and pumping station on site B. Subject to the differences between an application for planning permission and an application for approval of details (see below), the substance of the development proposals did not change. As in February 2003, 77 dwellings, together with car parking, open space and sewage pumping station, were proposed on the site.

At the meeting on 10th June, seven out of the 15 members present had not been present at the meeting on 11th February. Members were provided with two reports. One report was made available to the public in accordance with section 100B(1) of the Local Government Act 1972 ("the 1972 Act") ("the public report"). The other was a confidential report which was dealt with in closed session as exempt information: under sections 100B(2), 100A(4), 100I(1) and paragraph 12 of Schedule 12A to the 1972 Act ("the confidential report").

The material parts of the public report are as follows. The report began by summarising the views of the parish or town council. It said that the parish council objected to the application, inter alia, upon the ground that access for emergency services would be difficult and that the site was in close proximity to Carless oil refinery.

When listing the responses of other consultees, the report said this in respect of the response of the HSE:

Representations made by members of the public are then summarised. Amongst the points made by those who had signed a petition of objection containing 438 signatures were the following points:

A long list of development plan policies is set out. That list includes a reference to policy TT1, which is described as "Development Affecting Highways".

The planning history is then summarised. The refusal of permission on 11th February 2003 is mentioned. The only comment is "appeal pending".

The proposal is described and under the heading "Appraisal" the report says:

Under "Highway and Parking Aspects" the report says, in part:

The report then deals with private and public amenity space, and design layout, and concludes by saying:

It will be noted that:

There was further public report which dealt with the application for planning permission for 20 car parking spaces on site B, but that took the matter no further.

In that part of the meeting that was open to the public a representative of the local objectors, Mr Kirkman, was permitted to make brief submissions against the applications. This procedure was in accordance with the usual arrangements made for the conduct of the committee's meetings. Such arrangements, while not statutory, are not in the least uncommon, although the practices of individual local planning authorities vary in this respect.

The public were excluded whilst the confidential report was being considered by the committee. It referred to the two public reports and paragraph 1 explained its purpose:

Paragraph 2 explained the background, referring to the 1993 planning permission, the renewals in 1998 and 2002 and said:

Under the heading "consideration and refusal of the appeal application", paragraph 3 dealt with the application for planning permission that had been made in 2002. Having referred to the two deferrals and the site visits, paragraph 3 then set out in full the reasons for refusal dated 11th February 2003 (see above).

Paragraph 4, under the heading "appeal against refusal of the appeal application", said:

Paragraph 5 was headed "legal - counsel's advice" and explained that an experienced barrister, specialising in planning law and the conduct of planning appeals, had been asked to give advice. It said that counsel had taken into account all relevant matters, including in particular the letter from the HSE. Paragraph 5 continued:

Part 6 of the report contains a conclusion:

It will be noted that:

All this might have been of no practical consequence if the defendant's safety/evacuation and environmental capacity objections had been rejected by an inspector on appeal, but they were not. Despite the advice in the confidential report that if the current applications were approved it was likely that the appeal would be withdrawn, it was not.

In a decision letter dated 12th August 2003 an inspector, following a site visit made on 30th July 2003, dismissed the appeal. He considered that the main issues were:

When dealing with issue (a), the inspector referred to the HSE letter, to the grant of planning permission in 1993 and to the subsequent consultations with the HSE. He then said:

The inspector then described the means of access to the site from Una Road and Edward Street, and concluded by saying:

He considered the proposal to provide 20 unallocated parking spaces within the site, but concluded in paragraph 11:

When considering issue (b), the inspector said this in paragraph 12:

The inspector then considered, but rejected, the defendant's case on issue (c). In doing so, he made it clear, in the final sentence of paragraph 14 of his decision letter, that he accepted that the principle of residential development on the site was established:

Against that background, Mr Brown's submissions on behalf of the claimant may be summarised as follows:

In addition to those submissions, Mr Brown further submitted that in relying upon the risk of costs, given the manner in which that issue was addressed in part 6 of the confidential report, the committee had had regard to an irrelevant consideration; and that the committee was under a duty, in the particular circumstances of this case, to explain why it had departed from the February decision.

For the reasons set out below, I have found it unnecessary to consider those two further submissions. I propose to consider Mr Brown's principal submissions upon the premise that the proper inference to be drawn is that the members changed their minds in June 2003 because they agreed with the reasoning set out in the officer's reports. It follows that if those reports failed to deal with a material consideration, the members's decision is also flawed, since they have not provided any separate reasons of their own for the defendant's change of mind.

Proposition (1) above is not in dispute. On behalf of the defendant, Mr Taylor was prepared to accept that the defendant's earlier reasons for refusing planning permission were a material consideration. He submitted that, upon analysis, the reports did consider the defendant's safety/evacuation and environmental capacity objections. The public report mentioned that the parish council and those signing the petition were concerned about emergency access; in dealing with the capacity of Una Road and Edward Street and with car parking standards the report had addressed the substance of the environmental capacity objection; the HSE letter had been referred to, it was unnecessary to mention the passages that had been relied upon by the council because they were purely hypothetical since the site was not a greenfield site, but a site having the benefit of an outline planning permission; and upon analysis of the text of policies TE14 and BE6 they were of no application, so it was unnecessary to mention them. The confidential report had set out the February reasons for refusal so that members in June would have been aware of them. It was acceptable for the confidential report to set out background matters so that counsel's advice and the advice received internally from the defendant's legal department as to costs could be considered in context. Counsel's advice, even though it dealt with the planning merits, and the internal advice relating to costs, were both properly described as exempt under paragraph 12 of Schedule 12A to the 1972 Act.

Schedule 12A defines "exempt information". Paragraph 12 is as follows:

He relied upon the decision of Otton J in NJ Stoop v Council of the Royal Borough of Kensington and Chelsea and London and Edinburgh Trust Plc [1991] JPL 1129. The defendant's committee had decided in open session that it would refuse planning permission. It went into private session to hear advice from the defendant's Director of Legal Services (Mr Phillips) and having done so decided, when the meeting resumed in open session, to grant planning permission. The decision to grant planning permission was challenged by way of judicial review. Various points were taken in relation to the propriety of the committee's having received Mr Phillips' advice in closed session. On page 1141 Otton J said this:

On behalf of the interested party, Mr Straker QC acknowledged that there were differences between the manner in which the defendant had determined the application for planning permission in February and the manner in which the applications were determined in June. He submitted that this was not the issue. The differences in treatment were explained by the fact that in June the committee was considering an application for approval of reserved matters, not an application for planning permission. Thus the principle of development was not in issue. He submitted that it was unnecessary for the defendant to have considered the February grounds of refusal as amplified in the statement, because the statement was opposing residential development on the site in principle. Its contents were therefore not a material consideration when determining the application for approval of reserved matters. He further submitted that the observations of the HSE in relation to reducing the numbers of people within the consultation distance were irrelevant when considering the numbers of dwellings or the layout proposed in a reserved matters application. Thus, for example, it would not be open to the local planning authority at the reserved matters stage to require a layout which sought to reduce the number of dwellings or which sought to ensure that they were sited as far as reasonably possible from the Carless boundary. He further submitted that the local planning authority could not rely upon its environmental capacity objection as a reason for refusing to approve details of 77, rather than say 50, dwellings on the site. In support of this submission he relied on the decision of the Court of Appeal in R v Newbury District Council and Newbury District Agricultural Society ex parte Chieveley Parish Council [1999] PLCR 51. In that case the society had applied for outline planning permission for two exhibition halls with a total floor space of 5,644 square metres. Plans accompanying the application showed the siting of the proposed halls. The application was approved, but the reserved matters in condition 1 included siting, design and external appearance. The Court of Appeal concluded that condition 1 was unlawful, insofar as it reserved siting for subsequent approval. It had also been argued that the gross floor space of the development could be controlled under condition 1. Pill LJ (with whom the other members of the court agreed) rejected this argument, saying at page 60:

There is an important distinction between the Newbury case and the present case. In the Newbury case the outline planning permission specified the permitted gross floor space. In those circumstances it is not surprising that the Court of Appeal concluded that the permitted floor space could not be cut down by means of a condition reserving design details for subsequent approval. The details to be approved would have to be details of a building of the permitted size. The present case would be analogous with Newbury if the 1993, 1998 and 2002 outline planning permissions had specified the number of dwellings permitted on the site. They did not. No upper or lower limit was specified. In those circumstances, it was open to the local planning authority to control the number of dwellings to be erected on the site by controlling not merely their design, but also their siting, and indeed the amount of landscaping to be provided on the site. The public report effectively acknowledges that it is open to a local planning authority to control the numbers of dwellings to be erected on a site that has the benefit of a bare outline planning permission by referring under housing policy and planning history to the advice relating to density in PPG3. The report makes the point that PPG3 seeks densities of between 30-50 dwellings per hectare, and that the density of the proposed development was 40 dwellings per hectare. Those observations would have been entirely irrelevant if there was no power, at the approval of details stage, for a local planning authority to seek to increase or reduce the number of dwellings proposed on a site with the benefit of a bare outline permission.

At times Mr Straker seemed to be submitting that at the approval of details stage the local planning authority was simply concerned with the amenities of those who would be living on the application site itself. If environmental conditions would be acceptable on the site with a given number of houses, then the wider impacts of that number of houses were irrelevant.

Insofar as that submission was being advanced on behalf of a responsible house builder, I have no hesitation in rejecting it. In deciding what density is appropriate on a particular site, the relationship of that site to adjoining land uses, both residential and non-residential, is plainly relevant. Thus, if there was a noisy or a smelly use adjoining the northern boundary of the site the local planning authority might seek at the reserved matters stage to ensure that there was a layout which kept dwellings as far to the south of the site as possible, and, for example, placed the landscaping on the northern boundary. If reducing the number of dwellings or relocating the dwellings on the site would reduce the risks of an incident by making evacuation easier, I can see no reason whatsoever why the local planning authority should be precluded from considering such a factor at the reserved matters stage. Similarly, the effect of a proposed layout on adjoining land uses will be a relevant consideration. If placing too great a number of dwellings on a site would cause harm to the amenities of adjoining occupiers by reason of, for example, overlooking, or unnecessary loss of sunlight or daylight or undue visual intrusion (always bearing mind that the site is accepted as being suitable in principle for some form of residential development), then there is no reason why such factors cannot be considered at the approval of details stage. Since the outline planning permission in the present case leaves the detail of the relationship between the residential development approved in principle on the site and its neighbours entirely at large, I can see no reason why the defendant should not have been able to seek a reduction in the numbers of dwellings proposed on the site on the basis of its safety/evacuation and environmental capacity objections.

For the reasons explained above, I reject Mr Straker's submission that the statement was not a material consideration because it was an objection to residential development in principle, and the "pass had been sold" in that respect. The statement explained, with some care, why the defendant considered that 77 dwellings on the site would be too many. It is true that it did not specify a lower figure, but it gave pretty broad hints as to what would be appropriate by referring to the basis of the inspector's determination in 1993 (50 dwellings) and the result of adopting a density of 30 dwellings per hectare (57 dwellings).

While there will very often be significant differences in the factors to be taken into consideration when determining an application for approval of details, as opposed to an application for planning permission, on the facts of this case the differences were more apparent than real, since the statement had acknowledged that the site was suitable in principle for residential development because of the 2002 outline planning permission, and had therefore argued against that background for a reduction in the number of proposed dwellings in the application for planning permission.

For these reasons, I am satisfied that the defendant's safety/evacuation and environmental capacity reasons for refusing planning permission in February 2003 were material considerations which the committee should have taken into account in June 2003. In so concluding, I do not suggest that members were bound to reach the same conclusion in June as their predecessors had in February, nor do I suggest that officers should not have set out their own professional judgment. However, the members in June should have been given a proper opportunity to consider whether or not they adhered to the objections made in February, and if not why not. They were not given that opportunity. I will not repeat the catalogue of omissions in the public report. They are set out above. Those omissions made the public report seriously (I do not say deliberately) misleading. In effect, the report simply ignored the defendant's own safety/evacuation and environmental capacity objections. It is no answer to say that the report mentioned that similar objections were being advanced by others, the parish council and petitioners, since the report gave no indication whatsoever that those third party objections had been endorsed by the defendant itself and were being actively pursued in the appeal proceedings. If the policies relied upon by the defendant in the statement were not considered by officers to be relevant, or if officers considered that a particular construction was to be placed upon the HSE letter, then the report should have explained the officers's position, rather than simply ignored the points made in the statement.

Those omissions were not remedied by the confidential report. It ignored the defendant's evacuation and environmental capacity objections and dealt with the defendant's safety objection thorough the reported views of counsel on the planning merits. I intend no disrespect to counsel's views when I say that, as in every case, they were as good as the instructions upon which they were based. Those instructions did not include the statement which amplified and clarified the, perhaps less than impressive on its face, refusal notice. Understandably, counsel was not able to grapple with the way in which the safety/evacuation objection was being advanced by the defendant (which would in due course be accepted by the inspector).

Insofar as the defendant's safety objection was dealt with at all, it was dealt with in closed session, upon the basis of counsel's advice as to its merits in a confidential report. It is unnecessary for the purposes of this judgment to consider the ambit of paragraph 12 of Schedule 12A to the 1972 Act, or the decision of Otton J in Stoop. The provisions of sections 100A(4) and 100B(2) do not apply in a vacuum. In deciding whether and how to operate those provisions, which confer a discretion, a local planning authority must not lose sight of the underlying requirement that what is done should be procedurally fair to the applicant for planning permission and to third parties who support or oppose the development.

Whatever the scope of paragraph 12, it was manifestly unfair to deal with the defendant's safety objection (insofar as it was dealt with at all) solely in a confidential report which was considered in closed session from which the public, including Mr Kirkman, were excluded. I do not suggest that the procedure adopted was deliberately unfair, but that was the practical effect of the way in which the subject matter was split between the public and the confidential reports. In effect, the merits of the defendant's earlier objection to 77 dwellings on the site were dealt with (insofar as they were dealt with at all) behind Mr Kirkman's back. His opportunity to make representations was limited (understandably given the amount of business with which the Development Control Committee had to deal), but he could not hope to make effective representations if a major part of the case against the development on the merits was not referred to at all in the public part of the proceedings.

For the avoidance of doubt, I do not suggest that counsel's advice, including his advice on the merits, could not have been fairly dealt with as an excluded item. What fairness required was that the defendant's reasons for refusal and the officers' response thereto were also dealt with in the public report and discussed in open session. I should make it clear that I do not doubt that the officers acted with the best of motives. They were genuinely (albeit mistakenly as it turned out) concerned that the defendant's reasons for refusal had no substance and were anxious that the position should be rectified so that the defendant would not be exposed to the risk of costs. The manner in which they set out to achieve that objective was, however, very seriously flawed.

For these reasons, which are in essence that the way in which the matter was presented to members on 10th June was both seriously misleading and unfair, I quash both the approval of details and the grant of planning permission.

MR BROWN: My Lord, I am very grateful. In the circumstances I would ask for an order that the defendant pay the claimant's costs of today. My Lord, the defendant, as you will have noted, is legally aided and therefore summary assessment is not an option that is open to the court.

MR JUSTICE SULLIVAN: No.

MR BROWN: I think the proper order is that the costs be paid on the standard basis, subject to detailed assessment, if not agreed.

MR JUSTICE SULLIVAN: And then what I call a legal aid assessment still?

MR BROWN: Yes, I think it is assessed in accordance with the Community Legal Service Costs Regulations 2000, but your Lordship has the point.

MR JUSTICE SULLIVAN: Any objection to that Mr Taylor?

MR TAYLOR: My Lord, I do not resist that application.

MR JUSTICE SULLIVAN: Then the application is granted. The defendant to pay the claimant's costs on a standard basis, such costs to go for detailed assessment. There is to be what I still call a legal aid assessment and what the associate will put me right on in the proper form.

Anything else?

MR TAYLOR: My Lord, I do not make an application at this stage for leave to appeal because the council obviously needs to consider its position formally and that will involve going back to members.

MR JUSTICE SULLIVAN: Yes.

MR TAYLOR: That raises a certain practical difficulty, given the time limits that exist for making an application. I believe it is 28 days.

MR JUSTICE SULLIVAN: I think actually it is less, is it not? I thought it was 14.

MR TAYLOR: I think you are right, it is 14.

MR JUSTICE SULLIVAN: It does cause a problem. I will obviously hear what Mr Brown has to say about it, but rather than try to bounce you into making an application, I would have no objection to extending the period so that the council has an opportunity to consider my judgment. If they think there is any real prospect of success after reading the terms of the judgment, then, well, they are welcome to try.

MR TAYLOR: I am grateful for that indication. What I was going to suggest was an order that the defendant has 28 days from the date when the transcript becomes available.

MR JUSTICE SULLIVAN: That is quite a long time. You normally only have 14 days from now. I should have thought 14 days from when the transcript becomes available -- in fact if I gave 28 days from now, because the transcript I suspect will be within a week and I generally turn them round on the same day.

MR TAYLOR: On that basis I have to accept that. It is difficult to get members together sometimes.

MR JUSTICE SULLIVAN: I am sure that there must be something in the standing orders about chairman's action or something like that which may well assist you.

MR TAYLOR: I am obliged.

MR JUSTICE SULLIVAN: Wait a minute. We are in a slightly odd position because you are not asking for permission, you are asking really in fact for an extension of time within which to make an application for permission.

MR TAYLOR: Indeed.

MR BROWN: I do not know if my learned friend envisages whether that application would first of all be made to your Lordship or straight to the Court of Appeal. If he is going to make an application, he may as well make it now.

MR JUSTICE SULLIVAN: Quite frankly, I think the better thing for you to do is to make the application to me now. I am quite happy, if I refuse the application, to give you an extended period of time to renew it to the Court of Appeal, so that you do not feel obliged to rush off precipitantly, as it were, and renew just to preserve your position. I think that actually is the better way of doing it, Mr Taylor.

MR TAYLOR: Certainly.

MR JUSTICE SULLIVAN: You have made your application. Do you want to say anything in support of the application?

MR TAYLOR: I shall not take any further time in that.

MR JUSTICE SULLIVAN: Thank you very much. I hope you will not think me discourteous if I refuse permission because I do not think there is any real prospect of success and I do not think the case raises any issue of principle or importance. It turns entirely upon the facts.

So I refuse you permission Mr Taylor, but what I do do is to extend your time for applying to the Court of Appeal for permission to appeal from 14 to 28 days.