Knowles-Fitton, R (on the application of) v Craven District Council & Ors

In 2007 the interested parties ('Mr and Mrs Godson') were granted planning permission by the defendant ('the Council') for the erection on their land of a chalet or chalets. Two matters arise for determination by the court. (1) Bizarre though this may seem at first blush (the question will not appear so odd after I have explained the planning history), the court must decide whether the planning consent permits the erection of nine chalets, as Mr and Mrs Godson contend, or only one chalet, which is the Council's case. (2) The claimant is the leader of the Council and, with the support of the Council, asks the court to make an order quashing the planning permission on the ground that it was granted in error. It is agreed by the parties that the officer who granted the planning permission under delegated powers intended to make it subject to a condition which would restrict the use of the chalet (or chalets) to holiday purposes and would prohibit use as a permanent residence (or residences), but by mistake no such condition was attached to the consent.

His Honour Judge Behrens directed that the application for permission to apply for judicial review and, if permission were granted, the substantive hearing should come on together. At the beginning of the hearing I said that I would grant permission to apply and proceed immediately to the substantive questions. I did so because question (1) raises a point which is well arguable either way and which will have to be decided in any event, and this litigation is an appropriate forum in which this can be done. Further, the issue for consideration under question (2) is essentially the effect of delay on the claim, but the claimant and the Council have indicated that they will not seek to have the planning permission quashed if they are successful on question (1): accordingly deciding question (1) is a necessary preliminary to dealing with question (2). This is not to be taken as tantamount to granting the extension of time for issuing a claim for judicial review which is sought by the claimant and the Council: whether an extension should be granted will fall to be considered under question (2).

The history is, fortunately, quite a simple one.

Mr and Mrs Godson own Low Watson House Farm, Clapham, Lancaster. Notwithstanding the postal address, the land is administratively in the county of North Yorkshire, and the Council is the local planning authority. Mr and Mrs Godson are poultry farmers and some years ago they decided to diversify by erecting holiday homes on part of their land. It is not clear whether at this early stage they were thinking of homes for letting or homes for sale: as matters have developed, they have undoubtedly settled on the latter.

On 30 June 2003 the Council granted Mr and Mrs Godson outline planning permission ('the 2003 planning permission') for "Redevelopment Of Land From Former Poultry Unit to Holiday Chalet Site." Conditions were attached to the 2003 planning permission. Condition (1) required the applicants to obtain "approval of the details of the siting, design and external appearance of the chalets, and the landscaping of the site" ('the reserved matters') before any development was commenced. Condition (4) required the development to be commenced before the expiration of five years from the grant of planning permission or two years from the approval of the last of the reserved mattes to be approved. Condition (10) was in these terms:

Pursuant to the 2003 planning permission, a reserved matters approval was issued on 9 March 2006. The siting plan showed a layout of eight chalet sites.

Jumping ahead in time somewhat, on 17 September 2007 the 2003 planning permission was varied by substituting, at the request of Mr and Mrs Godson, three fresh conditions for the existing condition (10). The new time condition imposed an annual closure on the site in place of the 60 day user provision in condition (10):

Going back now to the beginning of 2007, on 2 January of that year Mr and Mrs Godson had lodged an application for full planning permission for "THE DEVELOPMENT OF ONE ADDITIONAL TIMBER CHALET ON THE SITE OF A FORMER POULTRY UNIT, PLANNING PERMISSION HAVING ALREADY BEEN GRANTED FOR EIGHT TIMBER CHALETS." The area of the site was stated to be 0.6 hectares, which is the same as that to which the 2003 planning permission related. The "floor area of new buildings" was stated to be 120 sq metres, which would be the approximate floor area of a single chalet. The answer to the question as to "the total number of dwellings proposed" was "THE APPLICATION IS FOR ONE ADDITIONAL DWELLING MAKING 9 IN TOTAL." The answer to the question about the number of car parking spaces which would be available was "18 IN TOTAL."

The application was accompanied by (1) a cheque for a fee payable to the Council; (2) a layout plan; and (3) a letter from Mr and Mrs Godson's agent. (1) The cheque was for £265, the amount appropriate for an application for permission to erect a single dwelling (the fee for an application for nine dwellings would have been £265 multiplied by nine). On the form which accompanied the fee, the application was again described as "THE DEVELOPMENT OF ONE ADDITIONAL TIMBER CHALET." (2) The layout plan showed nine chalets and eighteen parking spaces, with the configuration being markedly different from that which had been shown on the plan in respect of which reserved matters approval had been given. (3) The letter from the agent referred to "a planning application for the erection of an additional timber chalet at the site, taking the total number on the site to nine, rather than the eight that have been currently approved." The writer also drew the attention of the Council to the fact that the application involved the alteration of cabin types, i.e. the chalets were now to be different from those which had been approved as one of the reserved matters.

The Officer's Report recommended approval, but stated expressly that "Conditions attached to the previous approval [the 2003 planning permission] are to be included on the decision notice if the application is approved."

The application was successful, and on 21 February 2007 planning permission was granted ('the 2007 planning permission'). The proposal approved is described as "One timber chalet in addition to planning permission already granted for eight timber chalets (and amended layout)." Several conditions were attached to the 2007 planning permission. Something has been made in argument of the fact that they contained references to 'the chalets' (plural). More important, and this became the trigger for this litigation, there was no condition restricting the period for which a chalet might be used or prohibiting user as a permanent residence. Finally, the 'Reasons for approval' at the end of the decision were set out in the following terms:

Work on the development started later in 2007. Old farm buildings were knocked down, ground works were laid, and landscaping was carried out. In October 2007 the bases for nine chalets were laid, and it is clear that the layout followed the plan submitted for the 2007 planning permission. A chalet was purchased and fitted out as a show home on Plot 4. The development has been marketed under the name 'Keasden Heights' through a company owned by Mr and Mrs Godson. Mr and Mrs Godson were hoping to sell Plot 6 early in 2010, and ordered and paid for a chalet to be erected on that plot, but the sale has gone off because of doubts about the planning situation. Nothing has been built on the remaining seven plots.

The doubts to which I have referred surfaced in early 2010. They were first raised informally in discussions and correspondence between Mr and Mrs Godson's agent and the Council in February 2010. On 16 April 2010 the solicitors acting for Mr and Mrs Godson wrote a formal letter to Mr Moore of Planning Services, with a copy to Ms Cooper, who is the Head of Legal and Democratic Services at the Council. In this letter, the solicitors asserted, giving detailed reasons in support of their contention, that the 2007 planning permission was a freestanding consent for nine units without restriction as to occupation.

Later in this judgment I will have to review the correspondence which followed. At this stage I should just mention that on 14 July 2010 Mr and Mrs Godson lodged with the Council an application for a Lawful Development Certificate in respect of the construction of nine chalets without restriction as to occupation. This application appears to have been put on hold, and understandably so, given that the same question as that raised by the application falls to be decided in these proceedings.

The claim form was issued on 20 October 2010. The relief sought is: (1) permission to apply for judicial review; (2) an extension of time; (3) an order quashing the 2007 planning permission; and/or (4) a declaration as to the legal effect of the 2007 planning permission.

The question is whether the 2007 planning permission is a consent to the erection of one chalet or of nine chalets

The general principles are agreed. A "planning permission is not to be construed like a commercial document, but is to be given the meaning that a reasonable reader would give to it": Carter Commercial Developments Limited (in administration) v Secretary of State for Transport, Local Government and the Regions [2002] EWCA Civ 1994, paragraph 21 (Arden LJ). The extrinsic material which may be taken into account when construing a planning permission is very limited but, at any rate when one is examining a grant of full planning permission, it is permissible to look at the application and the accompanying plans: Barnett v Secretary of State for Communities and Local Government [2010] 1 P & C R 8, paragraphs 30, 31 (Keene LJ).

Mr Hunter, who appeared for the claimant and for the Council, submitted that the answer to the question of interpretation was a simple one and could be gleaned from the 2007 planning permission itself. This, by its express terms, permitted the erection of one chalet, not nine chalets. The reference to the eight chalets for which permission had 'already' been granted showed that the permission for those eight was a mere matter of history: they were in no way authorised by the 2007 planning permission. The references to 'chalets' (plural) in the conditions was an accident of drafting, to which no significance should be attached.

Mr Manley QC, who appeared for Mr and Mrs Godson, submitted that there is no way in which the 2007 planning permission can be treated as an amendment of the 2003 planning permission. One has to obtain what is effectively an amendment to an existing permission by making an application for a fresh planning consent. If one is successful, then one has, as Mr and Mrs Godson have here, two separate planning consents and one can choose (subject to time limits) to implement one or the other. If one cannot treat the 2007 application as an application to amend, and one has regard to the fact that it addressed the site as a whole and dealt comprehensively with matters (type and layout) affecting all nine chalets, it has to be regarded as a consent for those nine. The reference to permission having already been granted for eight does indeed record a matter of history, but does not prevent the 2007 planning permission being a permission for all nine chalets. That, Mr Manley says, is how it has to be regarded.

The question which I have to decide is not an easy one, and involves the judicial steersman in finding a channel between Scylla and Charybdis. The alternative perils lie in departing too far from the common sense approach commended by Mr Hunter and in brushing aside the elementary principles of planning law on which Mr Manley rests. I accept what is only a minor part of Mr Hunter's submissions, namely, that not much attention should be paid to references to 'chalets' (plural) in the conditions attached to the 2007n planning permission. But, in my judgment, the main part of Mr Hunter's argument over-simplifies the case to a degree which is, in a word, erroneous. It is agreed that the work already carried out by Mr and Mrs Godson has been done in compliance with planning law, and that the work as intended to be completed would likewise be lawful. That lawfulness must have a source. So far as the layout of the development and the types of chalet erected or to be erected are concerned, legitimacy can only be derived from the 2007 planning permission. Mr Hunter's approach forces one to treat (1) the legality of eight chalets as dependent on the 2003 planning permission and the consequential approval of reserved matters (in so far as the approval dealt with the number of chalets); and (2) the legality of the ninth chalet, of the types of all the chalets, and of the layout of the development, as dependent on the 2007 planning permission. There may well be cases in which, as Mr Hunter says, one can fairly attribute different parts of works carried out on a site to two distinct planning consents. In the circumstances of this case, however, such an attribution seems to me to involve an artificiality which is destructive of the approach to interpretation which Mr Hunter has invited me to adopt.

Accordingly, on the first issue I find that the 2007 planning permission is a consent to the erection of nine chalets. Whatever the outcome of the second issue, there will be a declaration to this effect.

The position of the claimant and of the Council is that, if the court were to find that the 2007 planning permission were limited to a single chalet, they would 'live with' the absence of a condition as to user and would not ask the court to quash the permission. Instead, they would ask for an appropriate declaration as to the scope of the permission. In the event of the court finding (as I have found) that the 2007 planning permission extends to nine chalets, the claimant and the Council ask for the permission to be quashed.

The following matters are common ground. (1) The court may quash a planning permission if the grant of permission was infected by a material error. (2) The grant of the 2007 planning permission was so infected, the error lying in the failure of the officer concerned to attach the intended condition as to user. (3) The starting-point in such a case as this is that the court should maintain the integrity of the planning system by quashing the planning permission, unless there is a good reason, such as undue delay or substantial prejudice which makes that course inappropriate: see R on the application of Gardner v Harrogate Borough Council [2008] EWHC 2942 (Admin), paragraph 40 (Sullivan J).

A claim form in which judicial review is sought "must be filed (a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose": CPR 54.5(1). That rule imposes separate requirements, one as to promptness and the other as to three months, and it cannot be assumed that filing a claim form within that time will satisfy the requirement as to promptness. Moreover, "the importance of acting promptly applies with particular force where it is sought to challenge the grant of planning permission": Finn-Kelcey v Milton Keynes Borough Council [2009] Env L R 17, paragraphs 21, 22 (Keene LJ).

Under section 31(6) of the Senior Courts Act 1981, the court may refuse to grant permission to apply for judicial review or may refuse to grant substantive relief "if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration."

I must now (1) examine the evidence as to delay; (2) examine the evidence as to prejudice; and (3), on the basis of that examination, decide whether the factors in favour of quashing the 2007 planning permission outweigh (or are outweighed by) those which tell against the grant of relief. In consequence, I will either extend the time for filing the claim form and quash the 2007 planning permission or refuse to extend time and dismiss the claim.

I must set out what may seem to be a tedious chronology, but the exercise is a necessary one.

The history begins with the informal discussions in February 2010 and the formal letter of 16 April 2010 to which I have referred in paragraph 13 of this judgment.

The Council does not appear to have acknowledged the letter of 16 April, and on 13 May the person dealing with the matter within Mr and Mrs Godson's solicitors, Mrs Pat Blakemore, e-mailed Mr Moore and Ms Cooper at the Council and asked for "an urgent response."

Again, there appears to have been no response, and on 17 May Mrs Blakemore sent another e-mail to Mr Moore and Ms Cooper. In this e-mail Mrs Blakemore set out at some length the financial consequences to Mr Godson of permitting the issue of interpretation to remain unresolved.

There was no response, or at any rate no written response, to the e-mail of 17 May. On 17 June Mrs Blakemore sent a further e-mail to the Council, saying that she had had numerous conversations with Mr and Mrs Godson's bank, which was funding the development, and that Mr Godson was "under a lot of stress because of financial losses this delay is causing." Mrs Blakemore asked for "a letter to be sent urgently confirming that you agree with me that the chalets can be occupied free of restriction."

On 1 July the Council at last responded to the letter of 16 April. The response was in the form of an e-mail from Michael Turnbull, one of the solicitors employed by the Council. Mr Turnbull began by stating that the letter of 16 April had "very recently [italics supplied] been referred to him." He then took issue with the nature of the buildings which had been erected on the site, on the basis that they were caravans which had the appearance of, but were not in reality, chalets. In view of this, Mr Turnbull did not think that any useful purpose would be served by responding in detail to the analysis of the planning situation which had been set out by Mrs Blakemore in the letter of 16 April.

On the same day, 1 July, Mrs Blakemore replied to Mr Turnbull by e-mail. She stated that he was mistaken as to what had been placed on site. These were in fact chalets, that is, as appears from another e-mail, structures fixed to the ground and lacking any chassis. Mrs Blakemore referred to the fact that a planning officer had taken the view that the 2007 planning permission was a consent to the erection of nine chalets (other material before the court confirms that Mrs Blakemore was correct in this statement), and asked Mr Turnbull either to agree with her or to provide a "detailed explanation" of the contrary view.

On 5 July, and again on 7 July, Mrs Blakemore sent e-mails in which she pressed Mr Turnbull for an answer. The first e-mail was copied to Ms Cooper. Further correspondence by e-mail ensued and had one positive effect which was that each party obtained an opinion from counsel and it was agreed that these opinions should be exchanged.

The Advice from Mr Manley was dated 10 July and was received by the Council 14 July. The Advice from Mr Hunter was received by the Council on 12 July. On the question of interpretation each counsel advanced the view which he has repeated in the form of submissions before me. The concluding paragraph of Mr Manley's Advice is of some significance:

On 23 July Mrs Blakemore sent a further reminder to Mr Turnbull, again stating that her clients' business was "being severely prejudiced by the continued delays."

On 30 July Mr Turnbull proposed a compromise solution. This was rejected by Mrs Blakemore on 5 August. The detail of the compromise is not now material. What is relevant is that in his e-mail of 30 July Mr Turnbull indicated that a decision whether to apply for judicial review would have to be taken by the Council if the compromise were rejected. The next scheduled meeting of the Policy Committee at which a decision on taking proceedings could be made was not until 8 September, although it was "procedurally possible for a special meeting to be called before then"

Yet more requests for information on what was going to happen were made by Mrs Blakemore in e-mails of 19 and 20 August. On 20 August Mr Turnbull informed her that "internal consultations are being carried out on a draft report on the question of judicial review" in preparation for the meeting on 8 September.

On 8 September the Policy Committee met and authorised the commencement of this litigation. On 9 September Mr Turnbull informed Mrs Blakemore of the decision.

On 5, 14 and 19 October, Mrs Blakemore sent further e-mails to Mr Turnbull. The essential message was (in my words, not hers) "get on with it." She referred specifically to the undetermined application for a Lawful Development Certificate (see paragraph 14 above) "which is also languishing pending your deliberations about it" and stated that the delay "is totally unreasonable and prejudicial to my client's business."

As I have already mentioned, the claim form was filed on 20 October.

Mr Godson has filed a witness statement which is mainly concerned with financial matters.

Mr Godson states that, in reliance on the 2007 planning permission, he and Mrs Godson negotiated a bank loan which now amounts to £500,000. He is currently paying interest of £1,000 a month.

The cost of the chalet on Plot 4 (the show home) was £150,000. The sale price of a fully serviced and fitted and fully furnished chalet is £225,000, of which £50,000 would be profit.

A sale of Plot 6 was agreed in principle at a price of £175,000: the reduction was on the basis that there would be no fitting out or furnishing of the chalet. On completion, £100,000 would have been applied in reduction of the loan. The sale went off after six months because of the uncertainty about the occupancy restriction.

A purchaser was prepared to put down a deposit on a sale of Plot 3 at a price of £195,000: the reduction was on the basis that the chalet would be fully fitted, but with no furnishing. This sale, which would have resulted in £125,000 going to the bank, also went off because of the planning uncertainty.

Mr Godson makes the point that the difference in price between a permanent dwelling and a holiday home is £50,000 per unit. He and Mrs Godson will therefore be substantially worse off if the 2007 planning permission is quashed. No chalets have been sold, and interest on the bank loan (no principal has been repaid) is coming from "money earned from our egg business, from our savings, sale of shares, cashing in pensions and selling items from our home."

Mr Turnbull has responded to this evidence. I should focus on two particular points which he makes.

First, Mr Turnbull, by reference to the marketing material produced by Mr and Mrs Godson's company, demonstrates that the development was not undertaken in reliance on any assumption that the chalets could be used as permanent residences. On the contrary, they have always been advertised as "holiday homes", save that an amendment to the marketing material made in August 2010 makes an exception for one chalet, stating that Plot 5 "has full residential status and so can be your permanent home."

Secondly, while Mr Turnbull takes issue with some of Mr Godson's calculations, he

The first, and possibly the only, question which I have to settle is whether the claimant and the Council should be granted an extension of the time set by CPR 54.5(1). The decision challenged was made on 21 February 2007, but the defect in the decision was not within the knowledge of the Council until early 2010 and was drawn to the attention of the Council in a formal manner by the letter of 16 April 2010. It is, as I understand matters, common ground that the period of three months should run, and promptness be measured, from that date. The three months expired on 16 July 2010. The claim form was filed on 20 October 2010. Assuming in favour of the Council that the issue of proceedings on the expiration of the three-month period would have satisfied the requirement of promptness, the claim form was issued over three months late or after double the permitted time had elapsed.

There was a time when the twin concepts of delay being inordinate and being inexcusable were common currency in civil litigation. They are, it seems to me, still appropriate when it comes to assessing what has occurred in this case.

However sympathetically one might approach this case from the point of view of the Council, the delay can only be characterised as inordinate. Any special factors over and above the duration of the delay are of an aggravating, not a mitigating, nature. These factors are (1) the number of reminders sent by Mrs Blakemore to the Council; (2) that in many of these reminders Mrs Blakemore expressly drew the attention of the Council to the difficulties in which Mr and Mrs Godson found themselves; and (3) the ongoing failure of the Council to respond to (or, frequently, even to acknowledge receipt of) communications from Mrs Blakemore.

The delay was also, in my judgment, inexcusable. I will take this in stages.

Mrs Blakemore's letter of 16 April 2010 raised a serious question of legal interpretation. The letter was copied to Ms Cooper, who is the chief legal officer of the Council. Notwithstanding several further, urgent communications from Mrs Blakemore, it appears from the evidence of Mr Turnbull that it was only at the end of June 2010 that the matter was referred for an opinion to a member of the Council's legal team. Certainly, there is no evidence of the matter having been given proper consideration before that time, nor is there any explanation or excuse for the delay.

Mr Turnbull says in his evidence that it was only upon reading the Advice of Mr Manley that he realised that the Council would have to proceed by way of judicial review. That Advice was received on 14 July 2010 and the decision to commence litigation was taken on 8 September 2010. Given that the three month time limit expired two days after the commencement of this period of eight weeks, this further delay is also inexcusable. No reason has been presented for failing to call an earlier meeting of the Policy Committee. In the circumstances of this case, and having regard to the position of the Council as a public body whose legal officers should be alert to the stringent time requirements for judicial review proceedings, the fact that this eight week period covered the summer holidays (a point mentioned by Mr Hunter) is immaterial.

A further six weeks elapsed between the decision to litigate and the issue of the claim form. The only point mentioned by way of explanation in submissions (although not in evidence) is that the consent of the leader of the Council to being named as claimant had to be obtained. This is no excuse, because obtaining the consent of an appropriate claimant should only take a day or so and proceedings could have been drafted whilst this was being done.

I must now address questions of prejudice: the prejudice which would be occasioned to Mr and Mrs Godson if I were to grant an extension of time and the prejudice to the Council if I were to refuse.

It may be that there is an element of exaggeration in Mr Godson's evidence as to financial matters. There is, however, no reason to doubt what has been said on these points: (1) specific sales have been lost because of the uncertainty about occupancy restrictions; (2) this loss of sales has had serious financial consequences, because interest is being charged on tranches of the bank loan which would have been repaid out of the proceeds of those sales; and (3) planning uncertainty will have cast a blight over potential sales during the summer season of 2010. These are uncompensatable losses in respect of which Mr and Mrs Godson have no cause of action. If the 2007 planning permission were to be quashed, they would lose the opportunity of recouping some of those losses through the sale of chalets at the higher prices which the absence of a residence restriction would attract.

On the other hand, if the 2007 planning permission is to stand, the effect will be to bed in to an area of outstanding natural beauty a breach of established planning policy. It must, however, be observed that no evidence has been filed by the Council as to any special harm (that is, harm going beyond any which is envisaged by the general considerations regarding new housing in rural areas) which would be occasioned by the permanent occupation of chalets on this particular site.

It has been said that, if the 2007 planning permission is not quashed, Mr and Mrs Godson will receive an unexpected windfall at the cost of the breach of policy to which I have referred. That may be so, but any windfall will be used in part to pay the extra interest charges to which I have referred.

In my judgment, the competing considerations as to prejudice favour Mr and Mrs Godson.

The factor of good administration was mentioned by Mr Hunter: the Council should, it is said, be permitted to have corrected in the public interest a plain mistake made by one of its officers. That would have been a powerful point if the claim had been launched promptly. It cannot, in my judgment, assist the Council in the light of the pre-litigation history which I have recounted. Indeed, there is a sense in which poor administration would be rewarded by permitting the claim to proceed.

It follows that I refuse an extension of time and dismiss the claim for judicial review.

The controversy between the Council and Mr and Mrs Godson started with a slip made by a planning officer. The slip was regrettable, but anyone can make a mistake, and no one would seek to attach much blame to the officer. Where, in my judgment, the Council went seriously wrong was in its failure to attempt to correct the error as soon as it was pointed out. From what I have seen (and I may not have seen everything), the fault appears to rest squarely with the legal department of the Council. If the appearance reflects reality, then, in the interests both of its taxpayers and of those who depend on its services, the Council needs to address with some urgency the systems which are operated within that department.