Copeland, R (on the application of) v London Borough of Tower Hamlets

This judicial review arises from a decision of the defendant, the London Borough of Tower Hamlets ("the council"), to grant planning permission for the change of use of 375 Cable Street, Shadwell, East London ("the premises") to enable a fast food take-away to operate there. Mr Copeland, the claimant, lives opposite 375 Cable Street. He is opposed to the premises becoming a fast food take-away. The first interested party, Mr Miah, has a lease on the premises and made the planning application. He has submitted written representations through his barrister, Mr Ranatunga, which endorse the points raised by the council in disputing the claim.

The argument Mr Copeland deploys in this judicial review is that in approving the change of use for Mr Miah's premises the council did not take into account the proximity of the premises to a local secondary school and thus its potential impact on the school's attempts to encourage healthy eating by pupils.

The premises subject to the planning application in this case were on the ground floor at Fisher House, 375 Cable Street. There are three storeys of residential use on the upper levels. Cable Street is a busy one-way street. At one time the premises were a general convenience store. They are directly adjacent to 377 Cable Street, which is also a convenience store. The surrounding area is predominantly residential in use. Also in the immediate vicinity - with entrances on Lukin Road, Hardinge Road and Commercial Road - is the Bishop Challoner Catholic Collegiate School ("Bishop Challoner School"). This is a successful school which educates some 1700 students with backgrounds where 73 mother tongues are spoken. It has a "healthy living" programme, which includes advice on healthy eating. Its kitchen facilities and caterers are geared towards a healthy eating programme for breakfast, breaks and lunch time.

Mr Miah found that the premises at his convenience store were no longer economically viable. Thus in December 2007 he applied for a change of use from a grocery shop (use class A1) to a hot food take-away (use class A5). The matter came before the council's Development Planning Committee in March 2008. The Council's Planning Department recommended that the application be refused, but the committee resolved that planning permission be granted subject to conditions regarding opening hours and the design of the ventilation duct.

A claim for judicial review was lodged in July 2008. By consent, this court ordered that the decision of the council be quashed because the reasons given for the grant of planning permission were inconsistent with the reasons of the committee.

Subsequently, Mr Miah made a further application to change the use of the premises to a hot food take-away. This was reported to the council's Development Planning Committee on 1 April 2009. The officer's report considered that the application was in accordance with the Development Plan, the council's other planning guidance and national planning policy. The Development Plan comprises the London Plan and the Tower Hamlets' Unitary Development Plan. It contains no policies which restrict hot food take-aways because of their proximity to schools. The council's interim planning guidance and other planning guidance notes do not deal with the topic either. There is a council "Healthy Borough" programme which seeks to adopt what is called a whole-systems approach to tackling the environmental causes of obesity. Its basis is that improving the local environment is central to the programme's implementation. There is no national government planning guidance on the proximity of hot food take-aways to schools.

After outlining the history and planning background, the officer's report of 1 April 2009 referred to the views of the Metropolitan Police, which remain opposed to the development, and to the recommendations of the council's Environmental and Highways Departments. It then summarised local representations. There were 123 individual responses which supported the application and 70 opposed to it, some of which mentioned the issue addressed in this judgment. There were three petitions against the scheme. At paragraph 7.4, the officer's report stated:

At the committee meeting on 1 April the application was approved, subject to eight planning conditions. The committee divided five-to-one, with one abstention. The matter was considered for about an hour. The minutes are supplemented by a witness statement by the council's development control manager, Mr Irvine, and his contemporaneous notes.

Before the planning committee there was a presentation by Ms Emma Davidson, a neighbouring resident, against the scheme. Mrs Ahmed (Mr Miah's daughter) spoke in favour of the application. Two ward councillors, who are not on the committee, then spoke against the scheme; one of these was Councillor Golds. Amongst other things, he said that local schools did not encourage take-away food establishments close to them, and he therefore objected. The other ward councillor, Councillor Archer, commented that the NHS Primary Care Trust did not encourage unhealthy eating in the borough and that Tower Hamlets had a problem in this regard, namely residents' obesity. Councillor Archer also noted that Waltham Forest London Borough Council had a policy to restrict local take-aways within 400 metres from schools.

Mr Irvine, as the development control officer, then presented his report to the committee. The matter was open for questions and comments by members of the committee. One member of the committee, Councillor Heslop, said that he felt public health was an issue, that he believed the applicant had made significant compromises to make the scheme acceptable but that he wanted details on the council's fast food policy. In his witness statement Mr Irvine said that he explained in response to Councillor Heslop that at the time of the meeting there was no relevant policy which specifically forbade fast food take-aways being located next to schools or any healthy eating policy that sought to control their location in any particular way.

On 9 April planning permission was formally issued. There was nothing there mentioning the hot food take-away issue.

On 13 May 2009 the claimant's solicitors wrote to the council and to Mr Miah that they did not consider that the decision to grant planning permission was lawful for two reasons. One of these was that the committee had failed to take account of a material consideration or misdirected itself in relation to the impact of the change on the healthy eating programme at Bishop Challoner School.

On 28 May Mr Miah's solicitors replied that the grounds of challenge were extremely weak and they could not see that the issue of location of a fast food take-away vis-a-vis the school was a material planning consideration. It enquired of the claimant's solicitors what planning guidance or circular indicated that this was a material planning consideration.

The next day the council wrote. It explained that the officer's report to the committee drew members' attention to the healthy eating issue and advised that it was not material to the determination of the application. It continued that a consideration would only be material for the purposes of land use planning if it related to the character of the use of land, citing Great Portland Estates Plc v Westminster City Council [1985] AC 661. The letter continued:

In response to these letters the claimant's solicitors drew attention to the government strategy entitled "Healthy Weight/Healthy Lives" of January 2008. That strategy refers to the problem faced in promoting healthy eating when in some neighbourhoods there is a prevalence of fast food restaurants and take-aways. The strategy explains that local authorities can use existing planning powers to control more carefully the number and location of fast food outlets in their local areas. The government would promote these powers to local authorities and NHS Primary Care Trusts to highlight the impact that they can have on promoting healthy weight, for instance through managing the proliferation of fast would outlets, particularly in proximity to parks and schools.

The claimant's solicitors also pointed out that another London Borough - Waltham Forest - had adopted a supplementary planning document on hot food take-aways which restricted hot food take-aways outside designated town centre and local parade locations if they were within 400 metres of the boundary of an existing school, youth centre or park.

In a subsequent letter the council wrote that notwithstanding those documents, they did not seem to deal with the key substantive point raised in their earlier letter. The council did not consider the potential effect of a proposed use on the dietary choices of school children to be a matter going to the character of the use of land. The strategy to which the claimant's solicitors referred did not address the question of planning law and the policy could not make something material which was not, in law, a material consideration. The council did not have a policy in place where fast food take-aways were restricted near schools or parks. Waltham Forest's approach was of no application to Tower Hamlets, and the council was not obliged to have regard to it when making decisions on applications for planning permission.

In November 2009 Mr Justice Collins granted permission for this judicial review. In January 2010 the council approved certain changes of the conditions attached to the grant of permission. Last month, Ian Dove QC, sitting as a Deputy High Court judge, ordered Mr Miah not to take any further action to implement the planning permission and ordered this expedited hearing.

In determining a planning application 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": Town & Country Planning Act 1990, Section 70 (2). There is a presumption in favour of the development plan, set out in Section 38 (6) of the Planning and Compulsory Purchase Act 2004. That provides that -

The principles for addressing material considerations were set out by Laws LJ in R (On Application of Jones) v North Warwickshire District Council [2001] EWCA Civ 315; The Times, March 30, 2001. There Laws LJ said that the operative statute may provide a lexicon of relevant considerations to which attention had to be paid but if the statute provided no such lexicon - or at least no exhaustive lexicon - the decision maker had to decide for himself what he would take into account. In doing so he had obviously to be guided by the policy and objects of the governing statute, but his decision as to what he would consider and what he would not consider was itself only to be reviewed on conventional Wednesbury grounds (paragraph 20).

In R (On Application of Kides) v South Cambridgeshire District Council [2002] EWCA Civ 1370, [2003] JPL 431, [2003] P & CR 19, the Court of Appeal addressed what was a material consideration in the planning context. Jonathan Parker LJ said:

Promoting social objectives may be a material consideration in the planning context. Planning controls in order to promote social objectives are considerations which can relate to physical land use. Whether a social objective is relevant in a particular case turns on the circumstances. As long as the promotion of the social goal is lawfully within the planning sphere it matters not that it falls elsewhere as well.

In Stringer v Ministry of Housing and Local Government [1971] WLR 1281, [1971] 1 All ER 65, Cooke J said:

In its correspondence with the claimant's solicitors the council referred to Westminster City Council v Great Portland Estates [1985] AC 661. There, the House of Lords held that the test of what is a material consideration in the planning context was whether it served a planing purpose relating to the character of the use of land. However Lord Scarman, with whom the other law lords agreed, said (page 670 E to F):

The relationship between a fast food take-away and its proximity to schools was not a matter contained in the council's development plan and is not otherwise required by law to be considered in making a planning decision. However, it is now common ground, subsequent to the council being advised by so experienced a counsel as Mr Harwood, that the proximity of a fast food take-away at 375 Cable Street to Bishop Challoner School was capable of being a material consideration. It relates to the use of land and is thus capable of being a planning consideration. It was thus for the planning committee to decide whether in this case it was material and, if so, what weight should be attached to it. It would not have been irrational - or otherwise flawed in public law terms - for the council not to have taken it into account or to have attached limited weight to the matter.

Given the common ground between the parties the issues in this case are whether the claimant can establish that the council's planning committee considered that the effect of a hot food take-away on healthy eating - because of its proximity to schools - was not, in law, capable of being a material consideration and, if so, whether the decision might have been different if it had regarded it as material.

In relation to the first point, Mr Harwood in his cogent argument contends that the council's planning officers set out in the committee report the representation made about proximity between the premises and the school and gave a view as to whether that was a material consideration which could have weight in determining this application against council policy. In his submission the officers were expressing a view whether in these particular circumstances the relationship was material and could have weight. The planning officers were not expressing a view as to whether the issue was capable in law of being material. They accepted the point as a valid concern and said it was not material in relation to this application.

Mr Harwood continues that the report by the planning officers, where they gave their advice on the planning merits, should be accepted for what it was. It was not a report by the council's lawyers. It did not purport to give legal advice and did not lead to a discussion between lawyers. It was a report from the planning experts to lay councillors about the application, offering their judgment as to the materiality of the issue. Paragraph 7.4 was not giving advice on the law or whether as a matter of law the issue could be considered. On the contrary, the report said that it was a valid concern but that the planning officers did not consider it material and of weight in the present case.

Moreover, Mr Harwood submits that the councillors did consider the issue. It was raised by the two ward councillors and then by Councillor Heslop. Councillor Heslop asked about the council's policy on the issue. The officers answered that there was no policy. Thus it was hardly surprising that the committee approved the application as being in accordance with the Development Plan without any material considerations overriding the plan. While three councillors discussed the issue, at no point did officers or other councillors say it could not be taken into account. It was treated at the committee as something which councillors could take into account, which accorded with the report. Consequently, the committee was not misdirected that proximity between the proposed hot food take-away and Bishop Challoner School was not capable of being a material consideration.

In my view the difficulty with Mr Harwood's submission is that it flies in the face of the plain words of paragraph 7.4 of the officer's report. When the application for planning permission came before the members of the planning committee councillors were specifically advised that such matters could not be material planning considerations. In my judgment, notwithstanding that this was not a legal document and was being addressed to lay councillors, it was a clear direction to the effect that the points about proximity of a fast food outlet to Bishop Challoner School could not be taken into account. It was a recommendation that that factor could not be given any weight at all.

The subsequent correspondence of the council with the claimant's solicitors underlines the emphatic nature of the advice being given on 1 April to the planning committee. The view within the council was that it was "not a matter going to the character of the use of land". The wording of the officer's report on 1 April was not in my view a direction to the effect that such matters could, in principle, be matters which could be taken into account in planning decisions generally but the councillors should not do so here because they were not material in this particular case. It was definitive advice that these matters should not be taken into account.

Mr Harwood correctly submits the issue was considered at the meeting. Councillors Gold and Archer, the ward councillors, raised the issue. Councillor Archer specifically referred to the Waltham Forest policy. Councillor Heslop, a member of the committee, addressed concerns about health and explained that he felt that public health was an issue.

In R v London County Council ex p London and Provincial Electric Theatres [1915] KB 466, Pickford LJ warned against treating every comment in committee as bearing on the decision. Here the healthy eating issue was discussed. But that of itself has not persuaded me that in reaching its decision the committee did not follow the officer's advice in paragraph 7.4, and in fact took exactly the opposite approach by treating as potentially material that which the officers had advised could not be taken into account. It is of some relevance that the sequence of events was that Mr Irvine presented his report after the ward councillors - Councillors Golds and Archer - had addressed the committee.

In any event, what they and Councillor Heslop said cannot, in my judgment, be taken to represent the basis of the committee's decision. The fact is that this discussion and the decision which followed took place against the background of the advice in the officer's report, that the matter was not a material planning issue which could have weight. It seems to me that the discussion - in particular Councillor Heslop's intervention - was an indication that members were in fact concerned about the point and might, if directed it was open for them to do so, have given it weight in the planning decision.

Mr Harwood submits that as a matter of discretion I should refuse relief because there would not have been a different outcome. In other words, if the committee had treated the proximity of a fast food outlet to a school as being capable of being a material consideration, there is no real prospect of a different decision having been taken in this case. In his submission the application was in accordance with the Development Plan and the council's other planning guidance. The materiality and weight to be attached to the proximity and healthy eating issues have to assessed in the context of the policy support for a positive decision. No planning policy was applicable in Tower Hamlets to support healthy eating as a factor in decision making. The national strategy in "Healthy Weight/Healthy Eating" relied on some further steps by central government which had not been taken. The fact that Waltham Forest London Borough Council may have taken steps reinforced the point that, without a planning policy, planning permission was not going to be refused on this basis, a consideration which is on the fringes of land use planning considerations.

I am not persuaded. It is accepted in public law that the probability that a decision maker would have reached the same decision is not enough. It is necessary for those advancing a "no different outcome" contention to demonstrate that the decision would inevitably have been the same. The point was addressed specifically by May LJ (as he then was) in Smith v North Eastern Derbyshire Primary Care Trust & Others [2006] EWCA Civ 1291, [2006] 1 WLR 315, a consultation case. His Lordship stated the principle clearly:

In this case the council has not persuaded me that the result would inevitably have been the same. Again I interpret Councillor Heslop's intervention as demonstrating that if the committee had been properly directed they may have reached a different decision overall in the light, for example, of matters like the council's "Healthy Borough" programme. But it is not for me to stray into the "forbidden territory", as May LJ put it in North Eastern Derbyshire, of evaluating the merits by second-guessing the outcome of a fresh consideration by democratically elected councillors, who will have to re-consider the case.

That being the case, I declare that the council have acted unlawfully and I quash the grant of planning permission.

MR WOLFE: I am obliged. Two things follow from that: first, I ask for an order that the defendant pay the claimant's costs of this application, to be assessed if not agreed; the second is in relation to the injunction which you indicated was put in place by the deputy judge (that is page 42). The order was expressed in the normal terms, in other words that it lasted until today or further order. So in the normal course of events it would fall away with my Lord's judgment.

I take you back to the stance the council took on that point. If you go to page 160 of the bundle, this was a letter - the last in the series of correspondence, I do not need to take you to the preceding documents - parallel correspondence at this point between my instructing solicitors and both the council and Mr Miah's solicitors, this is a letter to London Borough of Tower Hamlets. What was being proposed at this point was an order coupled with expedition. The second paragraph states this:

The council responded to that on page 162, an e.mail at the top of the page (third paragraph):

In that context, I do adopt some of the thinking that appears on the deputy's decision when it came to the interim injunction (page 42). He said:

My Lord has seen the way in which matters proceeded after the injunction was served on Mr Miah. I do not go back on what I said. I do not ask you to determine whether there was a breach. All I ask you to do is to recognise that we have a situation and ask you to make a further injunction - I think it is better an injunction rather than an extension - which would prevent Mr Miah from either further works to establish the premises as a hot food take-away or taking steps to operate the premises as a hot food take-away, and pending either further order by the court (so it can plainly look like discharge) or pending the grant of a further lawful planning permission. We would obviously appreciate to preserve the position beyond any doubt, pending any re-determination by the council.

I do make those two further applications.

MR JUSTICE CRANSTON: Mr Harwood, I am not sure you can say anything about the second, can you, given that Mr Miah is not represented here?

MR HARWOOD: I hope I can help in that context. He is here, I am told by solicitor's representative. He does not have counsel. Can costs be dealt with? In terms of costs, we do not resist the general principle we should pay the costs of proceedings. However we would ask my Lord to exclude from that the costs of the injunction proceedings, the injunction, because the injunction arose because of Mr Miah's intention to proceed. I think Mr Wolfe indicated early on in these proceedings that - - - - -

MR JUSTICE CRANSTON: Let us hear from Mr Wolfe.

MR WOLFE: I do resist that. I have shown my Lord the council's response. I have shown my Lord council's response when we said - - - - -

MR HARWOOD: The reason the injunction arose - nothing to do with the council - and arose of Mr Miah's intention to proceed. You will have seen a great deal of correspondence on that. It fell open to the claimant to seek costs in relation to that injunction application at this hearing, having succeeded, from Mr Miah. Agreement has been reached between the claimant and Mr Miah that he is not seeking his costs from Mr Miah in respect of that injunction. It would be wrong for the council to bear the costs of that interlocutory stage which is a matter we were simply not involved in.

MR JUSTICE CRANSTON: What about the other?

MR HARWOOD: In terms of continuing the injunction, the first point is that the application in these proceedings was not in the usual form for a declaration and quashing. It is inappropriate. The application for the interim injunction was one to hold the line. We are not aware of any notice having been given to Mr Miah that a permanent injunction was being sought against him until a point of reconsideration. It was not addressed in Mr Ranatunga's submissions. That is a point. It does not directly affect counsel. In the interests of justice, Mr Miah has not had an opportunity of considering our submission.

In terms of the ability of the court to grant an injunction, my Lord will appreciate that in general terms a member of the public does not have an ability to go to court to seek an injunction to prevent what might be in breach of planning control. It is a matter for the council to decide how to deal with those matters. That can be subject to review by the court if the council acts unlawfully.

The court has exercised - and in Mr Ian Dove's order quite conventionally exercised - a jurisdiction to hold the line once proceedings are under way with the aim of preventing the proceedings being prejudiced. One case in which that happened - it was also Tower Hamlets - was the decision of Mr Justice Collins in Procol (?) where an interim injunction was granted as to damage to Bishopsgate goods yard pending determination of a legal challenge over that. It is a holding-the-line point. To extend an injunction beyond the determination of these proceedings does go beyond that.

MR JUSTICE CRANSTON: That is sensible.

MR HARWOOD: May be I should make a suggestion. What is appropriate is that if the claimant seeks the injunction which goes beyond the end of these proceedings that Mr Miah has an opportunity to make formal representations on that with Mr Ranatunga, with the right of the court to hold the line there. The cost of that exercise should be borne by the council in any event.

MR WOLFE: I deal with the costs point first. I showed you a moment ago correspondence from my solicitors. The council is not a disinterested observer. It is completely bound up in it. Had the council in its response on page 162 taken a robust stance as to what it would do by way of enforcement in the event that there was a breach my solicitors would not have needed to press the matter in quite the way they did. The council had an opportunity and chose to take a very neutral at best stance on page 162, thereby, at least in part, contributing to the need to make that application. So I so say it is appropriate that they should face the costs of that process.

On the second point, the continuing injunction, I do not think it is being said my Lord has no jurisdiction to do it. I do not think Mr Harwood goes that far, so you have jurisdiction to do it. I appreciate it was not expressly contemplated in the application so far. As Mr Harwood rightly pionts out, we did indicate from the outset that my Lord might grant such further or other relief that was appropriate and this form was very clearly in that category.

As to Mr Miah's position, as I indicated, the wording I ask my Lord to order is that he be restrained until lawful planning permission or until further order. In other words, he can, without time limit, if he wishes, apply back to the court to vary or discharge that injunction. If he goes away and gets legal advice and discovers there is some flaw in the process or some reason why it should not have been done, that is entirely open to him.

I do say please do make the order we seek. In one sense we might say it is not necessary because he has no planning permission, because my Lord has quashed it and therefore anything he did by way of further steps would be unlawful. But you have seen the council's stance as expressed on page 162.

I say it is entirely appropriate to carry holding the ring, for the court to hold the ring until there is a fresh planning decision by the planning committee at which point the point can be put beyond doubt one way or the other. The planning committee will either say we think on the planning merits there should be a planning permission or we think on the planning merits there should not be a planning permission, at which point everybody can reflect from that point onwards.

I appreciate it is unusual because normally one would assume that if a planning permission was quashed that would be the end of it in terms of further steps being taken. But I hope on the basis of the facts you have seen so far and without needing to determine specifically whether there has been a breach you would recognise the perhaps unusual appropriateness nonetheless of specifically protecting the position of a further determination by this court of the planning committee.

MR JUSTICE CRANSTON: It seems to me, notwithstanding the rather ambivalent e.mail of 22 April 2010, the council were not involved in the injunction application and therefore the claimant should not get his costs of that. I am reluctant to issue an injunction when it has only been raised now and Mr Miah hasnot had an opportunity to consider the matter. However, I have the application of the claimant. It seems to me that it is appropriate for me to consider that application as a paper application within the next seven days subject to any submissions that Mr Miah might want to make.

MR WOLFE: Does my Lord in that context wish us to make further submissions or are you happy for my submissions to take - - - - -

MR JUSTICE CRANSTON: Yes. I have your submissions. Seven days: is that too long?

MR WOLFE: Would it be possible to make an order to be in place for seven days, to hold the ring for that seven days? And Mr Miah can make an application if he wishes.

MR JUSTICE CRANSTON: That might be a better way. Have you any thoughts on this?

MR HARWOOD: No.

MR JUSTICE CRANSTON: Can you draw up the appropriate order? Discuss it with Mr Harwood, of course.

MR WOLFE: Yes.

MR HARWOOD: My Lord, in terms of considering whether we would take proceedings any further, I would ask for permission to appeal. You know the issues. The Court of Appeal might take a different view.

MR JUSTICE CRANSTON: You have to go elsewhere for that.