Bayraktaroglu, R (on the application of) v South Cambridgeshire District Council

By an application dated the 25^th July 2004 Mr Adrian Critchlow, the first Interested Party, hereinafter referred to as “Mr Critchlow” applied to the Defendant, South Cambridgeshire District Council, for planning permission for the restoration, refurbishment and change of use of Sawston Hall in Church Lane, Sawston. The change of use sought was from a language school to a hotel. The proposed development also involved the construction of new buildings within the grounds surrounding the Hall.

Sawston Hall is a Grade I listed building. Accordingly, it was also necessary for Mr Critchlow to make an application for listed building consent. On the 26^th May 2005 the Defendant granted a listed building consent. The issue of whether or not to grant listed buildings consent was considered in conjunction with the related planning application at the Defendant’s Development and Conservation Control Committee (hereinafter called DCCC or the Committee) of 6^th April 2005. The Committee had resolved to approve the planning application (subject to conditions) subject to the proposal being referred to the Secretary of State and not being called in by him for determination. For reasons to which I will return, however, the Defendant did not issue a planning permission in the spring of 2005. The planning permission was not issued until 8^th February 2006.

The planning permission, when issued, authorised the following development:-

On the same date as it issued the planning permission the Defendant issued a second listed building consent. In all material particulars the listed building consent was identical to the consent which had been issued in May 2005. The consent, however, specified that it superseded the consent issued on 26^th May 2005. Whether or not it was open to the Defendant to proceed in that manner is of academic interest only given the conclusions which I reach later in this judgment.

On 7^th April 2006 the Claimant commenced these proceedings. The Claimant had lived within the grounds of Sawston Hall (at Spring Close Cottage) for approximately 23 years and he had registered objections to the grant of planning permission and listed building consent. He and his wife had been driving forces in the language school which had existed at Sawston Hall for many years. Sullivan J refused permission to bring judicial review proceedings upon consideration of the papers. At a renewed oral application, however, Mr Rabinder Singh QC, sitting as a Deputy High Court Judge, granted permission.

The Claimant advances five grounds upon which he says that the planning permission and listed building consent should be quashed. They are conveniently summarised at paragraph 2 of the “Claimant’s Combined Statement of Facts and Grounds”. They read as follows:-

Sawston Hall is a 16^th century Elizabethan country house. It forms part of an area of land of approximately 24 hectares, which include a former stable block, coach house and various outbuildings. Its heritage and planning designations are as follows:

Sawston Hall is Grade I listed;

within the site a statue of Atlas and a pump located within the central courtyard area are listed in their own right Grade II;

the entrance gates are listed Grade II;

a neighbouring building, St Mary’s Church, is a Grade I listed building;

Sawston Hall and its surrounding land (the site) has been identified as being of archaeological interest;

the site is located within Sawston Conservation Area;

parts of the grounds are designated a site of special scientific interest;

the trees are subject to a tree preservation order;

the Hall and grounds are outside of the village’s limits and are within the countryside and Green Belt.

Between 1982 and 2002 the Hall was used as a private educational establishment, a language school. The school was run by a limited company, Sawston Hall Limited. The Claimant was a founding director of that company and also its major shareholder.

As I have said, Mr Critchlow made his applications on the 26^th July 2004 although it is apparent that they were not received by the Defendant until some time thereafter. On or about the 20^th September 2004 the Claimant submitted a detailed objection to the applications. On the 26^th January 2005 the Claimant submitted a further detailed document to the Defendant to express the concerns of his wife and him about the way in which the Defendant had been reviewing and assessing the application. On the 10^th February solicitors acting for the Claimant wrote to the Defendant to register his objections and concerns about the application and on the same date Mr D. A. Rutherford, a consultant highway engineer, submitted a report to the Defendant on behalf of the Claimant in which he detailed a number of objections to the application on the grounds of highway safety.

As part of the application or, shortly thereafter, Mr Critchlow submitted to the Defendant a Business Plan in respect of the proposals for Sawston Hall. The Defendant determined that it was appropriate to assess the Business Plan. They instructed Humberts Leisure to :

In very early April the Claimant’s solicitors sent further letters to the Chairman of DCCC and to certain of the Defendant’s officers.

On Monday 4^th April 2005 eleven members of the DCCC attended a site visit so as to prepare themselves for a meeting of the committee which was due to take place on the 6^th April 2005.

At the committee meeting on 6^th April 2005 the members had before them a comprehensive report upon the applications which had been prepared by an officer or officers of the Defendant. In paragraph 60, the Report informed the Committee that the local Highway Authority had considered the proposals contained in the application and, in summary, did not object to them on the basis that a pedestrian footway would be provided along Church Lane. The Committee was also informed, however, that the comments of the Highway Authority in relation to the highway objection which had been submitted would be reported verbally. That was a reference, of course, to the highway objection registered by the Claimant and contained within the report of Mr Rutherford.

The comments of the Highway Authority upon Mr Rutherford’s views are set out in an email sent to the Defendant on 4^th April 2005. The Highway Authority informed the Defendant that the drawings supplied in connection with the application showed that the proposals proceeded on the basis that visibility splays of 40 metres in either direction were intended at the junction of the site and the adjoining highway. Such splays were not, however, capable being of provided and, on that account, the Highway Authority considered that the proposals were not acceptable.

It is common ground that those views were communicated to the members, orally, at the meeting on 6^th April. As I have said, and notwithstanding those views, the Committee resolved that it was minded to approve the application subject to the proposals being referred to the Secretary of State and not being called in by him for determination.

The Secretary of State did not call in the application. As I have said listed building consent was given by notice dated 26^th May 2005. On 1^st August 2005 the Claimant’s solicitors wrote to the Defendant indicating the grounds upon which they intended to commence proceedings for judicial review. They identified three potential grounds, one of which was an allegation of bias.

On 15^th September 2005 the Claimant’s solicitors wrote to the Defendant enclosing a report from a firm of Chartered Accountants, Peter Elworthy & Moore which cast doubt upon the Business Plan which had been submitted and which supported the application. Further it cast doubt upon and/or raised queries relating to the report of Humberts Leisure.

On the 5^th October 2005, DCCC considered the application for planning permission afresh. It did so with the assistance of a second substantial report from its officers. Following discussion the Committee resolved that it was minded to approve to the application. In due course, as I have said, the planning permission was issued. In the period between the resolution of 5^th October and the grant of the permission there was an exchange of correspondence between the Claimant and Defendant about the prospect of an application for judicial review.

In short, Mr Green, Counsel for the Claimant, submitted that the DCCC had no rational basis for rejecting the objection of the Highway Authority in relation to the access between the site and the adjoining highway. On that basis, he submitted that the decision to grant planning permission was fundamentally flawed.

It is common ground that a number of the members of the Committee visited the site on 4^th April 2005. At that time, they did not have in their possession a plan supplied by the Claimant which accurately showed the relevant visibility splays. At the meeting on 6^th April all members of the Committee were told of the objections of the Highway Authority. The only evidence as to how the members assessed that objection is that which can be gleaned from the minutes of the meeting of 6^th April. The minutes strongly suggest two things. Firstly that the members understood that the Highway Authority had raised an objection which was clearly relevant to their decision-making process but secondly their view was that the objection should not lead to a refusal of permission. They appeared to reach their decision on the basis that a proposal of the type under consideration was bound to have disadvantages as well as advantages; that it was necessary, therefore, to make an overall assessment of the competing factors. Additionally, however, the members of the Committee were clearly informed by the views of those members who had undertaken their own visual inspection of the site.

In October 2005 DCCC reassessed the application. In advance of the meeting a second site visit occurred. On this occasion the members were fully aware of the objection of the Highway Authority and they were in possession of an accurate plan.

In the report prepared by officers for the meeting of the 5^th October the views of the Highway Authority were referred to in detail. At paragraph 16 the views of the Highway Authority were summarised as follows:-

The Defendant’s officers commented upon the views of the Highway Authority in their report. In paragraph 21 the officers pointed to the possibility of widening the currently available access width at the gateways (although pointing out this would require listed building consent). In paragraph 22 of the report the officers said:-

It is common ground that the issue of highway safety raised by the local Highway Authority was a material consideration in determining the planning application. In my judgment, it is clear that DCCC took it into account when it reached its decision to grant planning permission. In an application of this kind it is inevitable, or at least, highly likely, that there will be factors militating in favour of a grant of permission and factors militating against.

The function of DCCC was to consider each of those factors and, having given those factors such weight as it thought appropriate, to reach a decision.

I accept the submission of Ms Sheikh on behalf of the Defendant that it was for the Defendant to give such weight to the views of the Highway Authority as it considered appropriate. There are two aspects to this. Firstly it was for the Committee to consider the true significance to be attached to the fact that the visibility splays were less in one instance and much less in the other than those recommended by the Highway Authority. Secondly, having decided upon its significance the Committee then had to balance the disadvantages of the proposal as a whole against its advantages as perceived by them.

In my judgment, there is no evidence that the Committee failed in its function. Having undertaken two inspections of the site (albeit different persons were present at different times) it was obviously open to the Committee to reach a different view from the Highway Authority as to the significance to be attached to the failure to provide visibility splays of the recommended length. In reaching a conclusion about significance the members of the committee were entitled to have regard to the views expressed by the members who visited the site, their own experience in these matters and, of course, the views of Highway Authority and the Claimant’s consultant. To repeat there is no evidence that they failed to have regard to any of those potential sources when reaching a decision.

In reality, the Claimant’s case on this issue is tantamount to suggesting that the view of a local highway authority upon a matter of highway safety is always to be regarded as a view which should override all other planning considerations unless there is contrary expert evidence which undermines the view of the highway authority. In my judgment that is not and cannot be correct. The view of a highway authority upon one aspect of a proposal is a material consideration, no more and no less. To repeat, the weight to be attached to that view in any given case must be a matter for the planning authority. In my judgment therefore this ground of challenge is not made out.

PPG15 is entitled “ Planning and the Historic Environment ”. The PPG was obviously a material consideration in relation to this planning application. Paragraph 3.8 and 3.9 are of particular relevance to the ground of challenge. They read:

English Heritage is the Government’s statutory adviser on the protection of England’s historic environment. It has published a Policy Statement entitled “Enabling development and the conservation of heritage assets”. The Claimant asserts that aspects of this policy statement are also material to the Defendant’s decision. In particular, the Claimant’s case is that the proposals under consideration constituted “enabling development” – that is development which is contrary to established planning policy – national or local – but which is occasionally permitted because it brings public benefits that have been demonstrated clearly to outweigh harm that would be caused. In the event that proposed development is properly to be categorised as “enabling development” the policy statement makes it clear that it is appropriate for the local planning authority to require applicants to provide evidence in support of their claim that the scheme is the only practicable means of generating the funds needed to secure the future of the heritage assets. In practice, this involves the obtaining of financial evidence. Paragraph 2.6.1 of the policy statement provides: -

It is clear from the report presented by the Defendant’s officers to the Committee in April 2005 that the officers had well in mind PPG 15 and the policy statement issued by English heritage. Further, as I have said, the Defendant commissioned evidence from Humberts Leisure. The briefing note which was provided to Humberts Leisure makes it clear that it was necessary for the Defendant to appraise the Business Plan which had been submitted by Mr Critchlow. In the words of the briefing note it was necessary “both to confirm the viability of the proposals but also to support the case for the construction of new building accommodation and restaurant building within the grounds”.

In its report to the Committee in April 2005 the officers made it clear that objectors questioned the financial viability of the scheme. They also made reference to the fact that English Heritage, upon consultation, did not object to the proposals. Indeed they were careful to point out that English Heritage did not consider that the proposals constituted enabling development but that even if they did they were considered to accord with the principle of the policy statement. (See paragraph 85 of the Report). At paragraph 101 the officers dealt with the report of Humberts Leisure and provided to the Committee a summary of the views expressed in that report.

By the time of the meeting in October 2005 the Claimant had obtained his own assessment of the viability issues from independent consultants. The report in question was in the form of a letter from Messrs Peters Elworthy & Moore a firm of Chartered Accountants.

The conclusion expressed in that letter was that the Humberts Leisure report had clearly demonstrated that the project would not be viable without the additional accommodation to be constructed in the grounds. However it was suggested that the viability of the scheme as a whole had not been demonstrated.

At the meeting in October 2005 the letter from Messrs Peter Elworthy & Moore was attached to the report provided to the Committee. The report of the officers, however, did not contain any specific views as to the weight to be attached to the evidence submitted by the Claimant on the issue of viability.

The minutes of the meeting of 5^th October clearly show that at least one member raised the issue of viability. Notes of the meeting taken by the Claimant’s solicitors suggest that at least two members questioned the need to make an assessment of Mr. Crithlow’s Business Plan.

In the reasons for approval contained within the planning permission there is a clear reference to the Defendant’s accepting that those parts of the proposal which involved new building are justified in the light of the views of both Humberts Leisure and Messrs Peter Elworthy & Moore. There is no specific and unequivocal finding that the evidence demonstrated the viability of the project as a whole.

Mr Green submitted that the Defendant had failed to consider whether the proposals, if implemented, as a whole were viable. He submitted that the Defendant was required so to do by virtue of the clear policy statement in paragraph 3.8 and 3.9 of PPG15.

Mr Fookes, counsel for the Interested Parties, was disposed to argue that there was no policy requirement to consider the viability of the project as a whole. He submitted that issues of viability only became relevant if there were actively competing uses for the site so that it then became necessary to consider viability in that context. Even if that way of reading paragraph 3.8 and 3.9 of PPG 15 is permissible, linguistically, in my judgment it does not accord with the spirit of the policy guidance as a whole. In my judgment it was incumbent upon the Defendant to consider the viability of these proposals as a whole. Did they do so?

In my judgment, they did. It is clear from the minutes of the meeting and the notes of October meeting taken by the Claimant’s solicitor that the issue of viability was discussed and addressed. There is no suggestion in the notes that the issue of viability was discussed only in the context of the need for those parts of the proposals which constituted the construction of new buildings. To repeat, there seems little doubt but that the Committee addressed the relevant question.

Did they have before them information upon which they could reasonably conclude that the proposals, as a whole, were viable? In my judgment, the answer to that question is also in the affirmative. The report of Humberts Leisure begins with the assertion that the consultants have undertaken “a desktop review of the applicant’s business plan in order to advise you of our opinion as to the viability of the applicant’s proposals to convert and extend Sawston Hall to provide a boutique hotel”. In my judgment that clearly means that the consultants were engaged in the task of assessing the viability of the proposal as a whole. Section 3 of their report is headed “Viability” and sections 3.1 to 3.3 are addressed to the issue of whether or not the proposals as a whole would prove financially viable. I appreciate that it does not state, expressly, at the end of that appraisal that the proposals constitute a viable scheme but, in my judgment, that is the sensible and reasonable inference to be drawn from that passage of the report.

Paragraph 3.4 confirms the need for facilities other that those which could be provided in the existing buildings. In my judgement, read fairly, paragraph 3.4 is information, in effect, confirming the viability of the scheme provided all its elements are present.

I appreciate that Messrs Peters Elworthy & Moore make detailed criticism which are aimed at suggesting that the scheme as a whole had not been demonstrated to be viable. In my judgment, however, it was perfectly permissible and lawful for DCCC to assess both the Humberts Leisure report and that of Peters Elworthy & Moore together and reach a conclusion for itself about whether viability had been demonstrated.

I should make two points, for completeness, on this ground of challenge. Firstly I accept that the Claimant’s solicitors’ notes of the October meeting show that at least two members of the committee thought that viability may be irrelevant. It does not follow from that, in my judgment, that there is any basis for concluding that that was the view of the Committee as a whole. The notes show that at least one of the members expressed the view openly that she was confident that viability had been established. It seems to me to be much more probable than not that in the light of the information before it the Committee, as a whole, considered the issue of viability and concluded that it had been demonstrated.

The Claimant also sought to support its challenge of this ground by reference to the following passage in the minutes of the October meeting: -

In my judgment, it is not easy to discern quite what this passage means. I do not think it is appropriate, however, to use this one sentence in the minutes (which is not repeated in the reasons for approval contained in the planning permission) as a basis for concluding that the Defendant failed to assess the issue of viability prospectively. In my judgment that would elevate the weight to be attached to the wording of these minutes to a status which is far beyond that which is justified.

In my judgment this ground of challenge also fails.

Given the conclusion expressed above it seems to me to be unnecessary to embark upon an analysis of whether or not this was “enabling development” in the context of policy statement by English Heritage. English Heritage clearly believed that it was not but, in any event, as I have said, it seems to me on any view the Defendant addressed the issue of viability. In the context of this case this was material to its consideration on any basis.

I propose to deal with this ground very shortly since, in my judgment, there is no substance to it. The Claimant makes complaint of the sentence in the minutes which I have set out in paragraph 45 above. He suggests that the “opportunities posed by the proposed development” were not material considerations.

It is completely unclear to what extent, if at all, this formed a basis for the decision. The sentence appears in the minutes but, as I have said, it is not repeated as a reason for the grant of permission in the actual planning permission. In any event, the reasons cited in the sentence are said to be “additional” reasons for the grant of the permission. Even if, which is extremely doubtful, these additional reasons played any meaningful part in the collective decision to grant planning permission and even if they were wholly impermissible reasons I have no doubt but that the Defendant would have reached the same conclusion in any event. Upon an assumption which is most favourable to the Claimant, namely that factors were taken into account which were wholly extraneous or immaterial nonetheless there is no basis for a quashing order since, to repeat, there is no realistic possibility that the Defendant would have reached a different decision had those factors been excluded from consideration completely.

I deal with this complaint equally summarily. It cannot possibly be a basis for finding that the Defendant acted unlawfully that the planning permission does not include as a reason for approval the sentence which was under attack under Ground 3. The obligation is to provide a summary of the reasons for the grant of planning permission (see below). That obligation was plainly met in the summary which is provided in this planning permission. It cannot be unlawful to refrain from specifying “additional” reasons which on any view were peripheral and which, according to the Claimant were immaterial, as being reasons for grant of permission.

As I have said the duty is to give summary reasons for the grant of planning permission. That is clear from Article 22 (1) of the Town and Country Planning (General Development Procedure) Order 1995.

The section of the planning permission headed “ Reasons for Approval ” begins:-

It follows from the above that I have reached the conclusion that none of the grounds of challenge are made out. In those circumstances, of course, the claim fails and falls to be dismissed.

I should record, however, that the Defendant and Interested Parties also defended this claim on the basis that the Claimant had no “sufficient interest” to bring a claim for judicial review and, in any event, I should refuse relief on the grounds of his delay in bringing the judicial review proceedings.

These points, of course, now are academic but for completeness I state my conclusions.

Notwithstanding that the Claimant now resides some distance from the site in question given his past and lengthy involvement with the language school which was the last use of the site I am of the view that he has demonstrated a “sufficient interest” to bring these proceedings. Further, I am not satisfied that the Defendant and Interested Parties have established that he is motivated by bad faith in bringing these proceedings. His willingness to give up his objection to these proposals in return for a significant benefit in earlier litigation does not necessarily lead to such a conclusion and there is no other evidence before me to suggest bad faith.

Had it been proved that the Defendant had acted unlawfully I would not have thought it appropriate to withhold relief on the grounds of delay. In relation to a site as sensitive as this I would be very reluctant to withhold relief in the face of illegality and I would certainly be loathe to do so unless very substantial prejudice was shown to have occurred as a consequence of the delay. No such prejudice has been demonstrated in this case. To repeat, however, the findings about standing and delay are academic since, in my judgment, this claim falls to be dismissed on the merits.