Kerr, R (On the Application Of) v Cambridge City Council (Rev 1)

Mr Robert Kerr seeks permission to bring a claim for judicial review against Cambridge City Council (“CCC”). In particular, he seeks an order quashing the grant of full planning permission dated 10 December 2009 that was granted to the interested party, Mr H Ali, at 107 Darwin Drive, Cambridge. The claim was filed on 10 February 2010. On 12 May 2010, Mr Robin Purchas QC, sitting as a deputy High Court judge, ordered that there should be a rolled-up hearing. On 29 November 2010, I decided that the claim had been brought promptly, that Mr Kerr should be granted permission to apply for judicial review, that his claim should be allowed and that the December 2009 planning permission should be quashed. I announced this decision at the conclusion of the hearing in an oral extempore judgment. This judgment is the corrected version of that judgment. At the hearing, I directed that the first named interested party should be dismissed from the claim. This is because that party is CCC’s Director of Environment and Planning and he has served an acknowledgement of service stating that he does not propose to take any part in the proceedings. He has, therefore, no separate interest to CCC in the claim.

Mr Kerr lives in a residential area of Cambridge at 106 Darwin Drive. This property is located immediately opposite the permission site at 107 Darwin Drive. Both 106 and 107 Darwin Drive are two storey semi-detached properties and are set off the road. Mr Kerr’s property remains a residential property in single occupation. However, the ground floor of 107 Darwin Drive was converted into a Community House for the Bangladeshi community in the nearby Akeman Street and Darwin Drive areas and the first floor, although retaining its residential use, was converted into a flat for use by the Community House’s key worker or Imam. This change of use was initially permitted by a temporary planning permission dated 10 February 2005. When this expired, the permission was renewed as a full planning permission with effect from 1 May 2006. The 2009 permission is concerned with a proposed extension to the rear and side of the property. This extension is needed so as to provide additional space for the Community House on the ground floor to enable greater flexibility to be made of the use of the Community House. The further accommodation on the upper floor is needed for use by visiting Imams and preachers.

Mr Kerr has, essentially, three separate grounds for seeking judicial review of CCC’s 2009 planning permission. These are that the application unlawfully sought permission for the extension of a building whose use is misdescribed in the application, that the decision was taken following significant procedural irregularity which adversely affected Mr Kerr’s interests and that the planning committee members who took the decision were tainted with actual or perceived bias. All three grounds are resisted and, in addition, CCC contends that the application should be dismissed because, in contravention of rule 54.5(1), the claim was not filed promptly albeit it was filed within the three-month time limit from when the decision was first made.

On 30 January 2004, Mr Hiron Ali applied to CCC for planning permission to change the use of 107 Darwin Drive. His application only related to the ground floor and the application was to change its use from residential use to use as an Islamic Centre. The letter accompanying the application explained that this room would be used for education and prayer, mainly by groups of up to twelve children with an accompanying adult and also for groups of between six and ten local people for prayers five times daily. This was elaborated on with an explanation that morning prayers would start at 6.30 am with about four people and evening prayers would last until about 9.00 pm with between six and eight people. Written objections were received to the effect that the house was already being used as a prayer house and for religious instruction. Although this was not stated in the objection letter provided to the court, this prior use was presumably without change of use permission. The objections, based on this previous use, complained that Darwin Drive was a relatively quiet residential area and the road was unduly busy. The extra use of the road by cars and visitors to the Centre had exacerbated parking and road safety problems in the road. On 30 March 2004, the applicant withdrew this application.

A fresh application was submitted on 1 November 2004. The same change of use was applied for. The application described in detail the nature of the proposed change of use. The building was to be converted into the Shah-Jalal Bangladeshi Community House. This would be for the use of the 15 to 20 Muslim families living in the immediate area and the first floor would accommodate a teacher. No structural alterations would be involved. The intended use of the ground floor would be for classes and shared prayer for up to 15 people and no additional noise would be generated. The users would walk to the Centre so that there would be no additional traffic and no-one congregating outside. The accompanying letter stressed that those setting up the Centre would be operating outside their remit if those using the Centre came from anywhere outside the immediate locality of Darwin Drive and the neighbouring Akeman Street. It was also stressed that the Centre was intended for sharing prayers and classes as a private activity and not as a replacement of the religious activity of a Mosque. The proposed use involved daily prayer meetings four times a day ending at 8.30 pm and Islamic classes and mother tongue classes for children during the day twice a day on Mondays to Saturdays and a management meeting on Sunday. Similar objections to this application were received to those submitted for the previous application.

The planning officer, in the report to the planning committee, recommended the approval of this application as a temporary consent. The report explained that the proposed use should be limited to 20 people on the premises at any one time and the hours of use restricted to between 0900 and 2100. Any more extended use would give rise to undue disturbance and noise. Given the local use of the Centre, there should be no additional traffic or on-street parking generated. The estimated 50 pedestrian trips a day to and from the Centre were considered acceptable. The report indicated that more intensive use during Ramadan was intended and that this ought not to give rise to an unacceptable impact on the residential amenity. However, it was recommended that a management plan should be submitted and approved by CCC to establish the timetable for prayers and teaching and to ensure that an appropriate level of use was not exceeded and that this plan should be approved one month prior to the implementation of the recommended use. Furthermore, initially, a temporary consent should be granted for one year to enable the proposed use to be assessed.

On 10 February 2005, CCC granted a one-year temporary permission for the intended use and with the recommended conditions limiting the numbers using the Centre at any one time and the hours of use and with a condition requiring the submission and agreement of a management plan prior to the start of the changed use of the premises. This read:

“10.

No development shall commence until a written plan for the day-to-day management of the community house has been submitted to and approved in writing by the local planning authority. The use of the community house shall be carried out in accordance with the approved management plan.

Reason: To ensure that there is no intensification in the use of the building and to protect the amenity of the adjoining residential properties.”

No management plan was in fact submitted or agreed prior to the changed use starting or in the year following the Centre opening.

On 22 September 2005, CCC granted a change of condition relating to the permitted hours of use during Ramadan. For the 30-day period of Ramadan, starting that year in the first week of October, additional use was permitted between 1.00 am and 2.00 am on Sundays to Thursdays and 1.30 am – 2.30 am on Fridays and Saturdays.

The temporary change of use expired on 1 May 2006. The Centre, in seeking a permanent permission, wished to extend the permitted hours of operation but the planning committee, when granting a permanent approval, only extended the permitted hours from 21.00 to 21.30 hours. Although the same condition requiring the prior submission of and agreement to a management plan was imposed as had been imposed previously, no such plan was ever submitted or agreed to.

In 2007, an application to extend the premises was refused. Mr Kerr and the occupants of number 111 Darwin Drive, Mr and Mrs Payne, objected in strong terms to this application on both design and use grounds. The design was said to be unacceptably obtrusive for the area and the use objection related to the inevitably intensified use and intensified disturbance in three respects, being the further enhanced generation of unacceptable noise, the extended hours of use and the increased traffic, parking and incidents involving the blocking of access that would result.

The officer’s report and the planning committee’s reasons for its decision are no longer available. It is clear, however, that the planning officer recommended refusal on all grounds but the committee only refused on design grounds. The reason for refusal related to the unacceptable nature of the proposed mass and form of the proposed extension which the committee considered would have a negative impact on the visual amenity of the locality. The committee did not address the planning officer’s objections relating to the possible further unacceptable intensification of the use of the Centre.

The design of the proposed extension was changed and this redesigned proposed extension formed the basis of the current application which led to the permission now impugned in these judicial review proceedings. This application explained that the extension, which covered both the ground and first floors, was not intended to permit a larger number of people to use the premises but merely to increase the floor space of the Centre to make it easier to separate the teaching of boys and girls and to facilitate a more flexible use of that space by the same number of people during the same permitted hours of opening.

Mr Kerr and the occupants of number 111 Darwin Drive, Mr and Mrs Payne, lodged detailed and strong objections to this application. The basis of both objections may be summarised in this way:

These objections were, in essence, accepted by the planning officer in his report. As a result, the planning officer recommended that the application should be rejected. The report summarised the reason for recommending rejection in these terms:

“The proposed extension is unacceptable because it would increase the size, scale and intensity of the existing community centre, which is in close proximity to neighbouring residential dwellings and situated on what is a relatively quiet residential street, to a level which is over and above what is reasonably acceptable to maintain the residential character and amenity of the area. This would be likely to have a significant adverse impact on the residential amenities currently enjoyed by occupiers, by reason of the comings and goings of visitors, some of which are likely to arrive by car, and the gathering of members before and after prayers and other events. In so doing, the proposed development fails to respond positively to the site context and would not make a positive contribution to the character of the area in terms of its impact on existing residential amenity. The development is therefore contrary to Cambridge Local Plan 2006 policies 3/4 and 3/7.”

The application was considered to raise issues of sufficient significance that it was referred to the Area planning committee. The application was listed for hearing by the North Area Planning Committee of CCC at its meeting to be held on 12 November 2009 starting at 7.30 pm. CCC has promulgated and published rules governing who is entitled to address the planning committee entitled Public Speaking at Committee on Planning Applications. These provided for a limited and brief opportunity for members of the public who had made a written representation on an application to make an oral representation to the committee at the beginning of the part of the meeting which was to discuss and decide the application in question. The relevant procedure may be summarised as follows:

Mr Kerr notified the Committee Manager during the morning of 11 November 2009 that he wished to address the Committee and he was duly registered as a speaker before noon on that day. Unfortunately, the committee clerk for the meeting printed off the list of people who had registered to speak at that committee meeting about four hours before the cut-off point for notification at noon on the morning of 11 November 2009 and before Mr Kerr had been registered as a speaker. Mr Kerr successfully registered as a speaker later than morning and before noon. No other speaker had registered to speak about the 107 Darwin Drive application. The application was high up on the agenda for consideration and when the relevant item was reached, the case officer reported to the Committee and summarised the planning officer’s recommendation. Someone who was not representing the applicant, who had not previously submitted a written representation and who was not registered to speak was then permitted to address the meeting and strongly supported the application. That person, a female, was erroneously presented to the Committee, and was then erroneously listed in the draft minutes of the meeting, as speaking on behalf of the Resident’s Association. Some time after the meeting, the committee clerk learnt that this person was in fact speaking on behalf of the Bangladeshi Community House Officers Association and the speaker was referred to in this corrected way in the final version of the minutes.

The committee then started to discuss the application. Mr Kerr, who had been sitting at the back of the room throughout this part of the proceedings, then handed a note to the committee clerk asking to be permitted to address the committee and informing the clerk that he had previously registered himself as a speaker who had also submitted a written representation. The note was passed to the councillor chairing the meeting who checked with the committee clerk whether Mr Kerr had in fact registered to speak. The clerk checked with the incomplete list of registered speakers and then erroneously informed the chairman that Mr Kerr was not registered. The committee then recessed and discussed whether to allow Mr Kerr to address them. Having taken advice from the three CCC officers present, the committee decided to refuse to permit Mr Kerr to address them.

The chairman’s evidence was that this refusal was agreed on because it would be unfair to the applicant if Mr Kerr was allowed to address the committee even though he had not been registered to speak. There were three further reasons why this decision was taken by the committee:

The committee discussed the planning application for about fifteen minutes and then voted ten to nil to accept it. In doing so, the committee considered that the main objection to the application advanced by the planning officer was that use intensification of the Centre would occur if the proposed extension was built. The committee considered that this view was erroneous because such intensification could and would be prevented by the imposition of a condition requiring a management plan to be submitted and approved. This plan would provide the means of controlling and limiting the use of the Centre to the levels fixed by the planning conditions that would be imposed.

It is clear from the notes of the discussion which were typed up by the committee clerk after the meeting in conformity with required practice that the committee accepted the view put forward by the two councillors who were reported in the minutes as having spoken in favour of the application that no intensification of use would occur because a management plan would be required which would ensure that the premises were only being enlarged to provide greater flexibility of use at the same intensity of use as they had always been used at. There was, however, no discussion or consideration of three potentially significant objections to that point of view.

The first of these objections that was not highlighted in the planning officer’s report was one that had been strongly urged by Mr Kerr and others to this and the previous planning application that had been refused in 2007. This was to the effect that, since 2005 when the Centre opened, there had been significant and increasingly excessive use of the premises in breach of the planning conditions that governed that use. Moreover, both the nature of the proposed extension and the current intentions of the applicant were both such that further and even greater over-intensive use would inevitably occur once the extension had been opened.

The second objection that was not addressed in the planning officer’s report, was that this particular applicant had demonstrated that a management plan condition would not ensure compliance with the use restrictions that would be imposed by CCC. This was because the applicant had failed to submit a management plan prior to the use as a Centre had started in 2005 or in 2006 before that use was continued with, had failed subsequently to submit a management plan and had, throughout, used the Centre in significant disregard and breach of the use restrictions it was subject to.

The third objection that was also not addressed in the planning officer’s report, was that, even if permission was to be granted, in view of the previous history of non-compliance with management plan conditions, the committee should not grant permission at all until a management plan had been submitted and approved. This would ensure that a robust management plan was in place which provided the necessary safeguards that would ensure compliance with the conditions as to use that would be imposed. This precondition would ensure that the applicant would not ignore the requirement to submit and operate such a management plan, unlike what had occurred following the two previous permissions in 2005 and 2006.

The committee’s decision was made on 12 November 2009 but planning permission was not promulgated and issued until 10 December 2009. This delay was largely caused by Mr Kerr writing to CCC soon after the meeting to complain that the vote had been obtained following procedural impropriety, unfairness and possible illegality. This letter was supplemented by an email and a further letter. These communications identified his principal complaint as being the inability to address the committee notwithstanding his having been registered as a speaker. He invited CCC to withdraw the result of the vote. The Chief Executive replied on 24 November 2009 fully acknowledging the error that had deprived Mr Kerr of the opportunity to address the committee but declining to return the decision to the committee for a further consideration of the application. The principal reason that the Chief Executive gave for not re-opening the decision was that Mr Kerr had been caused no prejudice because, as the letter erroneously stated, had he been allowed to speak, he would have been confined to the points raised in his written representations. These had also been fully summarised in the planning officer’s report recommending refusal and all these points were fully considered by the committee before it decided unanimously to grant planning permission. These reasons were all erroneous. In fact, Mr Kerr could have developed any relevant point had he spoken and he would not have been confined to his points raised in his written representations. Only some of his points had been summarised in the planning officer’s report and those that had not been summarised were not discussed by the committee in its decision discussion.

The permission decision was promulgated on 10 December 2009. Mr Kerr then sought to obtain the minutes of the meeting from CCC but these were only finally published on 7 January 2010. He also sought details of the previous planning history and was only able to obtain a partial set of documents and then only after he had had to have recourse to a Freedom of Information request. The balance of the relevant documents had been lost or mislaid. He lodged his judicial review on 10 February 2010. The effective delay was, therefore, a period of no more than about four weeks which, in the circumstances, was sufficiently prompt to comply with the requirement of promptness provided for in CPR 54.5(1).

It was contended on behalf of CCC that the three-month period for initiating judicial review provided for by CPR 54.5(1) started when the committee meeting took place on 12 November 2009. That is incorrect. The relevant date is the date that the decision was promulgated on 10 December 2009. Mr Kerr then, reasonably, sought to obtain the minutes of the committee because he wanted to ascertain in detail what the committee’s reasons were for unanimously rejecting the planning officer’s refusal recommendation. He also, reasonably, wanted to consult the planning file to look at the planning history of the use of the premises as an Islamic Centre. Having obtained this information and documentation, he reasonably needed a short period of time to research the question of whether he had grounds for seeking judicial review and then to draft the necessary documents. He is not legally qualified and he has acted in person throughout so a period of three to four weeks from obtaining all the necessary documents is reasonable. It follows that the judicial review proceedings were started within the three-month period and were also started promptly. The challenge by CCC to the suggested delay in starting judicial review proceedings is, therefore, dismissed.

Mr Kerr’s principal ground of challenge is that the permission should be set aside because the decision-making process was tainted with significant procedural error which caused him both unfairness and prejudice. In summary, his reasoning is as follows:

On behalf of CCC it was contended that no prejudice had been suffered by Mr Kerr so that it was not reasonable to quash the planning permission that had been granted even though it had been wrong to exclude him from the opportunity to address the committee at the outset of its deliberations. Mr Hugh Richards, counsel for CCC, cited a helpful quotation from the judgment of Ouseley J in R(Midcounties Cooperative Ltd) v Wyre Forest DC [2009] EWHC 964 (Admin) which sets out the approach that should be adopted when considering the consequences of procedural unfairness or error by a planning committee affecting an applicant for planning permission or an objector in relation to his objections:

“94.

The question of whether what the District Council did or omitted to do involved any procedural unfairness is however closely bound up with the question of whether there was any actual prejudice to the claimant. In the absence of some prejudice, there is in general no procedural unfairness because there is no such concept as a technical breach of natural justice. This was explained, for example, in Malloch v Aberdeen Corporation [1971] 1 WLR 1578 at 1595B to C by Lord Wilberforce. He said:

‘The appellant has first to show that his position was such that he had, in principle, a right to make representations before a decision against him was taken. But to show this is not necessarily enough, unless he can also show that if admitted to state his case he had a case of substance to make. A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the courts, unless behind it there is something of substance which has been lost by the failure.’

95.

The same point is made in the Lichfield Securities case at paragraphs 22 to 26. I note in particular what Sedley LJ said at paragraphs 22, 24 and 25:

‘22. We have no difficulty in accepting that LDC's failure to bring LSL and Williams into a single process of consultation, however brief, about the best formula for apportioning the road infrastructure costs was unjustified and was potentially unfair, in the circumstances, to LSL. But potential unfairness is not enough. It has been authoritatively said that there is no such thing as a technical breach of natural justice: R v Chief Constable of the ThamesValleyPolice, ex parte Cotton [1990] IRLR 344 per Stocker LJ at para. 53. Before treating this as a universal axiom, however, it is necessary to have regard to what Bingham LJ said at para. 60: "This is a field in which appearances are generally thought to matter"; and to consider how the two propositions would fit together in a case where, say, a defendant has been denied a chance to speak in mitigation before being sentenced, even though he cannot show that he would have had anything useful to say. What can be more confidently said is that in the field of public administration, absent some mandatory procedural scheme, it is the combination of process and impact which must be shown to have been unfair if a public law challenge is to succeed. ..

.

24.

Coming back to the question of substantive unfairness, in our view LDC have failed entirely to show that the formula favouring Williams was the only feasible outcome of an open consultation process. ...

25.

But that does not conclude the question of fairness. Mr Mole and Mr Lowe submitted that, even if LDC's conduct is open to the criticism that it was poor public administration, it did not cross the legal boundary between the fair and the unfair. We do not agree. ... The only remaining question is whether LSL, expertly advised and represented as they were, had sufficient information, advice and resources to make up the leeway and to submit anything they wished to the planning committee at its decisive meeting on 1 April: in other words, whether there was in the end any substantive unfairness to them.’"

The submission on behalf of CCC was that although CCC had accepted that it had committed a procedural error, nonetheless Mr Kerr had failed to show that he had been prejudiced by that error. He had failed to identify what he would have said had he been permitted to speak at the committee meeting and, as the Chief Executive subsequently and fairly pointed out to him in response to his complaint, his comprehensive written representations had been fairly and fully summarised in the planning officer’s report which was before the committee and the committee had discussed the case in detail and had fairly considered all relevant points including those that Mr Kerr had put forward through the twin prisms of his written representations and their summary in the planning officer’s report.

The submissions made on behalf of CCC fail to take account of the full extend of the procedural errors that Mr Kerr was subject to and also fail to take account of the apparent prejudice that Mr Kerr was subject to as a result of those errors. The errors that occurred where, in reality, four-fold:

In the light of those failures, it can readily be seen that Mr Kerr was seriously prejudiced in being prevented from addressing the committee. The value of a brief oral summary of cogent objections immediately before a planning committee deliberates on the merits of an application is considerable and Mr Kerr had, if he had chosen to use it effectively, an opportunity of addressing the issues that had not been fully placed before the committee by the planning officer and those raised in the oral presentation that had just been made by the speaker who had addressed the committee as an advocate for the proposal in the clothing of an advocate for the local residents. He would have had, as events turned out, an opportunity to place onto the agenda for discussion the matters relating to previous misuse of the premises, the likely future misuse and the unlikelihood of a management plan condition achieving its purpose. Finally, he could have urged the committee to defer granting planning permission before it had before it an agreed and robust management plan. These matters were not, as the minutes revealed, considered by the committee in its deliberations.

For all those reasons, the committee reached its decision in a significantly flawed procedural manner which caused Mr Kerr significant prejudice. The decision is, therefore, to be quashed and set aside.

Mr Kerr also sought to judicially review the grant of planning permission on two further grounds. The first of these was to the effect that the application was in some way unlawful because it was described as one relating to a Community House whereas it was in reality an application relating to a mosque. This ground is untenable. Although Mr Kerr considered that the present use of the ground floor was as a mosque, it was the same use as had been described in the applications made in 2005 and 2006, namely as a centre for local members of the Bangladeshi community to gather for prayers and for their children to gather for instruction in Islam and religious and cultural guidance. The Centre was also to be used as a meeting point for the Bangladeshi community. These uses are not uses as a Mosque which is a clearly defined and quite separate use. These uses have always been observed, the complaint about that use relates to alleged over use in terms of numbers present at any one time, extended hours of use and use by Bangladeshis who do not live locally and who use cars to travel to and from the centre. Thus, the application was correctly made for a Community House. This ground is untenable.

The second of these further grounds was based on the alleged bias of the committee. The allegation was based on the response of the Chief Executive to Mr Kerr’s complaint that he had been excluded from addressing the planning committee. The matters relied on did not show any bias, whether actual or perceived, of any person including any member of the planning committee. This ground is also, therefore, untenable.

This is a rolled up hearing, clearly, therefore, permission should be granted to Mr Kerr to apply for judicial review and he is entitled to an order quashing the grant of the full planning permission dated 10 December 2009 whose reference is 09/0731/Ful.

Mr Kerr is a litigant in person who is entitled to his costs of the claim. He has submitted a bill of costs in the sum of £4,124.99. I consider that this bill should be summarily assessed and that the sum so assessed should be £3,750. This reflects my disallowing about 38 of the claimed 360 hours spent on preparation and other matters associated with the claim. This sum should be paid to Mr Kerr by Friday 15 July 2011.

In the result, I find that: