Plunkett, R (on the application of) v Sefton Metropolitan District Council & Anor

Mr Greg Plunkett (“the claimant”) seeks to challenge the planning permission 5/2010/0466 dated 24 June 2010 (“the first planning permission”) granted by Sefton Metropolitan District Council (“Sefton”) to Mr Marcel Zachariah (“the Interested Party”). The permission related to the proposed erection of a two-storey garage to accommodate six cars with a games room and a terrace on the first floor at 8 Sandringham Road, Birkdale, Southport. The claimant is the owner and occupier of the adjoining property at 10 Sandringham Road.

Permission to apply for judicial review was granted by Langstaff J and I heard the substantive application. At the conclusion of the submissions made by Mr Richard Harwood, counsel for the claimant, I raised with Mr Paul Tucker QC, counsel for Sefton, the question of why his clients were continuing to contest the proceedings bearing in mind that the Interested Party had indicated that he had no intention of implementing the first planning permission but that instead he wished to implement a second planning permission granted on 9 November 2010. Mr Tucker duly took instructions and Sefton then for the first time agreed to quash the first planning permission. It was agreed that I should then deal with the issue of costs, which is the issue with which this judgment is concerned.

It will be necessary to explain the history leading up to these developments in the light of the accepted principles for determining the costs issue which were explained by Scott Baker J (as he then was) in Boxall and Boxall v Waltham Forest London Borough Council which was belatedly reported in[2010] 1 LLR 1 in the following terms:-

“22.

Having considered the authorities, the principles I deduced to be applicable are as follows:

(i)

the court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs;

(ii)

it will ordinarily be irrelevant that the claimant is legally aided;

(iii)

the overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;

(iv)

at each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties;

(v)

in the absence of a good reason to make any other order the fall back is to make no order as to costs;

(vi)

the court should take care to ensure that it does not discourage parties from setting judicial review proceedings, for example, by a local authority making a concession at an early stage.”

The claimant relies on the principles set out in the Boxall case and submits that Sefton should be ordered to pay his costs because first the claimant would have succeeded on the application to quash the first planning permission and second that it was necessary for the claimant to pursue this application up to the moment when Sefton agreed for the first time during the course of the substantive hearing that the first planning permission should be quashed.

Sefton contend that these proceedings should not have been pursued as the Interested Party indicated in September 2010 that he did not intend to implement the first planning permission and that he was only interested in implementing a second planning permission. On 25 January 2011, the Interested Party signed a planning obligation under section 106 of the Town and Country Planning Act 1990 (“the 1990 Act”) whereby he agreed not to implement the first planning permission “after the date of this undertaking”. The case for the claimant is that even with the section 106 agreement, the first planning permission remained in force and it could probably be relied on by a mortgagee-in-possession but that in any event the existence of the first planning permission would probably have presented difficulties for the claimant and his wife in either the refinancing his purchase of 10 Sandringham Road (which he wishes to do) or in disposing of this property.

Sefton submit that in the light of the statement of the Interested Party that he did not intend to implement the first planning permission and the section 106 obligation, the present proceedings are academic and that in any event the claimant would have been unsuccessful. It becomes necessary now to apply the Boxall principles and to carry out an assessment of the claimant’s prospects of success as well as the conduct of the parties while bearing in mind that the need to do justice does not require the same degree of analysis of the merits of the case as if there had been a full hearing. Of course, it is relevant that for the first time at the hearing, Sefton conceded that the claimant was entitled to the only relief which he sought which was quashing of the first planning permission.

The challenge to the grant of the first planning permission was brought on the grounds that the decision was unlawful because:-

“(i)

Sefton failed to consider the proximity of the West Birkdale Conservation Area to the application site and the effect of the proposal on the character and appearance of the Conservation Area for the purposes of (a) publicity of the application contrary to regulation 5A of the Planning (Listed Buildings and Conservation Areas) Regulations 1990 and (b) the merits of the decision contrary to Section 70(2) of the Town and Country Planning Act 1990 and Policy HC1 of the Unitary Development Plan and polices HE6, HE7, HE9 and HE10 of Planning Policy Statement 5; (“Ground 1”)

(ii)

Sefton failed to have regard to the Supplementary Planning Guidance on House Extensions, as conflicts with the guidance were not addressed, or the Council reached conclusions on the Guidance which were irrational; (“Ground 2”)

(iii)

Sefton failed to consider the planning application which was actually before it, contrary to section 70 of the Town and Country Planning Act 1990 as the committee’s consideration and the decision notice was of a plan which had been withdrawn and replaced; (“Ground 3”)

(iv)

The committee report failed to include a list of background papers, contrary to section 100D of the Local Government Act 1972, meaning that there is no record of the documents considered by officers in preparing their report to the committee.” (“Ground 4”)

The Interested Party applied for planning permission on 15 April 2010 under reference S/2010/0466 for “Proposed garage with games room above, following taking down of existing garage”. The form noted that the site could be seen from a public road and notice of it was served on the claimant and his wife identifying them as owners of part of the application site.

The application was for a large garage measuring 17.3 metres by 6.2 metres which would be capable of accommodating six cars parked in three rows. The garage would be 6.5 metres high at its front and over 9 metres high at its back where the land drops away. The second floor would have comprised a large room described as a games room with an open terrace measuring 5.3 metres wide by 4.8 metres at the rear. There would also have been a screen wall as part of the building rising 1.8 metres from the level of the terrace from number 10 Sandringham Road, which was the property of the claimant. Access to the terrace from the games room was to be by means of an external staircase at the back of the terrace. The terrace was to be 1.6 metres away from a children’s bedroom in the claimant’s house and at the same level. The blank screen wall would be 3 metres from the rear window to that bedroom and extend some 5.5 metres beyond that window towards the rear of number 8; therefore, there would be a view of a large blank wall from the bedroom.

There was no advertisement of the planning application in the local paper and no site notice but notification letters were sent to neighbours. There were detailed objections to this scheme including a petition from among others the occupants of 7 Sandringham Road and 9 Sandringham Road. The claimant made detailed objections to the proposal including objecting to first the fact that the outlook from number 10 would have a blank wall, second the effect on the character of the street, as well as third the noise and light nuisance and loss of space between the properties. It was said that the proposals were contrary to Sefton’s Unitary Development Plan and the Supplementary Planning Guidance on House Extensions, which include garages.

In May 2010, the Interested Party submitted amended proposed plans and elevations as drawings 01B. The amendment was to move the garage away from number 10. The application was first reported back to Sefton’s Planning Committee on 2 June 2010 with a recommendation by the officers for approval. The claimant identified errors in the report of 2 June 2010 and Sefton subsequently accepted that there were inaccuracies in that report.

A site visit took place on 21 June 2010 and the application was reported back to the Committee on 23 June 2010 together with a report recommending approval. Notwithstanding the objections of the claimant, the councillors resolved to grant planning permission after hearing both the claimant and the Interested Party. At no point in the consideration of the application was the significance of the extension of the West Birkdale Conservation Area to part of Sandringham Road mentioned or addressed. Nor was the Conservation Area referred to in the planning application and supporting material, the internal document of Sefton, the representations or the committee reports or the decision notice. It was not even mentioned at the committee meeting.

The claimant’s solicitor sent a judicial review pre-action protocol relating to the first planning permission to Sefton requesting various documents. On 6 September 2010, Sefton replied while supplying the requested documentation.

On 14 September 2010, the Interested Party applied for planning permission for the garage on revision B plan and the claimant was notified of this application but the judicial review applications had been filed in the Administrative Court on 17 September 2010 to challenge the first planning permission. This was just within the prescribed three-month period from its grant in June 2010.

According to the Interested Party, the claimant went to his house on 22 September 2010 with drawings showing his own amendments for the roof line and patio. During the meeting, the claimant asked the Interested Party to accept the drawing as a compromise but the Interested Party explained that where the claimant had put the staircase, there might not be sufficient head room. During the course of the discussion, the claimant replied that his main concern was that there should not be a patio above the garage but that the Interested Party could have a piece of the claimant’s land to straighten the boundary. The response of the Interested Party was that there was no need to complicate matters but that the Interested Party would be prepared to forgo the patio above the garage and would instruct his architect Mr Anderson to design a compromise.

The claimant obtained permission to pursue the present judicial review on 18 October 2010. The Interested Party’s architect submitted revision C on 21 October 2010. In an email, it was stated that the Interested Party “undertakes to implement this proposal should planning permission be granted rather than the scheme previously approved at Committee”. On 1 November 2010, Sefton wrote to the claimant in respect of the query raised by the claimant as to what mechanism might be used to ensure that the Interested Party would not proceed with the first planning permission in the event of the amended scheme being approved. The letter explained that a unilateral undertaking under section 106 to ensure that the Interested Party would not proceed with the first planning permission “could not be justified as it is not necessary or material to the current application”.

The planning permission for the second application on the basis of revision C was granted by officers on 9 November 2010.

On 12 January 2011 the existing proceedings for judicial review were reported to the council’s planning committee and discussed in private session.

Sefton’s published minutes record that:-

“The Committee considered the report of the Planning and Economic Development Director that advised a claim for judicial review and sought the Committee’s views in respect of defending the case. The report recommended the Officers be authorised to negotiate a settlement of the case with the claimant.

RESOLVED:

That the recommendation be not agreed and the Officers not be authorised to negotiate at the settlement of the case with the claimant”.

On 25 January 2011, the Interested Party signed a planning obligation under section 106 of the Town and Country Planning Act 1990 whereby he agreed not to implement the first planning permission “after the date of this undertaking”. The hearing of the application took place on 3 February 2011.

It is appropriate to deal at the outset with the contention of Sefton that the claimant should not receive his costs as the present proceedings are academic and that it was unnecessary for the claimant to pursue them in the way that he did in the light of the statement by the Interested Party that he did not wish to implement the first planning notice. So it is said that substantial and unnecessary costs have been incurred as a result of the claimant’s decision to pursue this claim.

It is correct that the Interested Party had stated that he had no intention of implementing the first planning permission if revision C was implemented. That undertaking had no legal effect and would not have bound any purchaser of the Interested Party’s house or any third party. In any event, the Interested Party only obtained permission on 9 November 2010. Sefton in a letter dated 1 November 2010 suggested to the claimant that the way of ensuring that the Interested Party would not proceed with the first planning permission would be “by private agreement between yourself and Mr Zachariah”. This undertaking would not have precluded the Interested Party or anyone purchasing the property from enforcing the first planning permission and so there can be no criticism of the claimant in continuing to pursue the judicial review application rather than following the suggestion of Sefton.

Sefton also contend that after the Interested Party entered the section 106 undertaking, this “underscored” their contention that “the continuance of these proceedings remains indefensible”. It is, however, also common ground now that the section 106 undertaking entered into on 25 January 2011 (which was a week before the hearing) would probably not have provided protection to the claimant from a claim by a mortgagee-in-possession relying on the first planning permission.

Furthermore, Sullivan LJ giving the judgment of the Court of Appeal in the case of R (Thomas Brown) v Carlisle City Council [2010] EWCA Civ 523; [2010] JPL 1571 explained that a section 106 planning application would not be the appropriate way of dealing with the first planning permission when it stated:-

“42.

[Counsel] told us that if we concluded, contrary to his submissions, that the grant of permission was unlawful, the Interested Party was prepared to give an undertaking to the Court, to be incorporated into a section 106 planning obligation so as to bind the land that it would not commence development of the Freight Distribution Centre until screening of both it and the airport work had been undertaken by the Defendant under the EIA regulations. It is difficult to see what purpose would be served by the court’s acceptance of such an undertaking that would not equally well be served by the quashing of the permission. A planning permission is a public document. Third party rights, e.g. the right of agricultural tenants on the land, may be affected by the existence, or otherwise of a planning permission. There would have to be some very good reason to persuade the court that acceptance of an undertaking that unlawful permission would not be implemented, or would otherwise be implemented, only on certain terms, would be a more appropriate course than a decision to quash an unlawful permission. No such reason has been identified in this case. It follows that the EIA challenge to the permission succeeds and the permission must be quashed”.

No “very good reasons” or indeed any reason has been put forward to show that the acceptance of an undertaking would be more appropriate than a decision quashing an unlawful permission. Indeed, on the contrary, there are good reasons why a quashing order in this case was required because first, as I have explained a section 106 arrangement would probably not protect the claimant against a mortgagee-in-possession and second the absence of a quashing order would probably make it difficult for the claimant to obtain re-financing or to dispose of his property while the first planning permission remains in force as it is a notorious fact that even with a section 106 arrangement, the existence of the first planning permission and the complications connected with it might well deter prospective purchasers or those considering re-financing the claimant in relation to 10 Sandringham Road. Third, there is no purpose which the first planning permission could then serve. Therefore the position is that contrary to the submissions of Sefton, the present proceedings were not academic while the first planning permission remained intact and indeed until Sefton agreed belatedly during their counsel’s submissions during the course of the hearing that the first planning permission should be quashed.

Sefton also sought to criticise the claimant because he entered into a conditional fee agreement on or about 25 May 2010, which was before the first planning permission was granted. Significantly this occurred after the time when the application for the first planning permission had been made but well after the claimant and his wife had filed their detailed objections to that planning application. At that time, there was a risk that the first planning permission might be granted. There can be no valid criticism of the claimant for doing this or for issuing proceedings on September 2010 which was just within the prescribed three-month period for challenging the first planning permission which had been made on 24 June 2010. I should add that I have considered but rejected, all Sefton’s other criticisms of the claimant’s conduct.

I am bound to say that I am surprised that Sefton did not agree to quash the first planning permission earlier than they did. It appears that Sefton considered that it was unnecessary to do so because of the section 106 agreement but, as I have explained, the Court of Appeal has made it quite clear that that is not an adequate substitute for a quashing order in an appropriate case. It is also regrettable in retrospect that Sefton’s Planning Committee did not on 12 January 2011 accept the recommendation of the Planning and Economic Development Director to allow the officer to reach a settlement.

So it comes to this, the claimant has during the hearing succeeded in obtaining the sole relief which he wanted which was to quash the first planning permission which until then Sefton had sought to uphold. At the forefront of arguments put forward by Sefton for resisting the claim was that the proceedings were academic because of the undertaking by the Interested Party but this did not adequately protect the claimant. Nor did the section 106 undertaking for the reasons which the Court of Appeal explained in the Thomas Brown case in the passage quoted in paragraph 24 above. This is not the appropriate way of dealing with the first planning permission. In any event, it probably did not protect against claims by the mortgagee in possession. Sefton contends that the permission, which is the subject matter of these proceedings, “cannot be implemented in full because it involves land which is owned by [the claimant]”. Even if that is correct, that would be an additional reason why Sefton should have agreed to quash the permission which nobody wanted and which I will explain in paragraphs 31ff was probably flawed. In those circumstances, the claimant was entitled to pursue this claim before he was vindicated when Sefton agreed during the hearing to an order quashing the first planning permission and so he would be entitled to his costs. In accordance with the approach in Boxall my aim is to do justice between the parties and my decision accords with that aim.

As I will explain, if, I had been in any doubt, I would have reached the same conclusion by taking account of the claimant’s prospects of success to which I now turn.

In considering what prospect the claimant would have had of succeeding, I bear in mind the fact that I have not heard full arguments but have reached a decision on the basis of the material put forward.

The case for the claimant is that Sefton did not consider the proximity of the West Birkdale Conservation Area at all in the application process. It is common ground that the odd-numbered properties 1-9 Sandringham Road were added by the council to the West Birkdale Conservation Area in 2008. These houses are on the opposite side of the road to the Interested Party’s house at number 8, the corner of number 8 being almost directly opposite the corner of number 9. The Conservation Area boundary runs down the middle of Sandringham Road until it is along side the boundary between numbers 9 and 11. In consequence number 8 Sandringham Road is therefore about five metres from the Conservation Area.

The West Birkdale Conservation Area appraisal was adopted by Sefton in March 2008 and the appraisal expressed concern at inappropriate developments, including that outside the area, affecting the setting of the conservation area. It identifies more recent houses which “generally jar with the character of the Conservation Area in terms of their scale and spacing… they are spaced much closer together” (paragraph 7.2 ). The appraisal shows two modern schemes that are just outside the Conservation Area but affect its setting (paragraphs 7.2).

The reasons why houses 1,3,5,7 and 9 Sandringham Road were added to the Conservation Area was because they have “most of the characteristics that are special in the Conservation Area”. The appraisal shows that numbers 1, 5 and 9 were constructed between 1908 and 1927 and that the Conservation Area’s pavement are paved with clay paviours and stone slabs which appear to be original. While the appraisal says that the addition to the Conservation Area stops at the end of those paviours, the paviours and kerbs do continue down Sandringham Road on both sides and past 8 and 10 Sandringham Road.

There are provisions for applications affecting the character or appearance of a Conservation Area in The Planning (Listed Buildings and Conservation Areas) Regulations 1990 because regulation 5A requires a Council to publicise planning applications which affect the character or appearance of a Conservation Area:-

“(1)

This regulation applies where an application for planning permission for any development of land is made to a local planning authority and the authority think that the development would affect the setting of a listed building or the character or appearance of a conservation area”.

The requirement on a local planning authority where this regulation applies are to publish in a local newspaper in the area in which the land is situated, a notice indicating the nature of the development in question, and naming a place within the locality where a copy of the application and of all plans would be open to inspection at all reasonable hours during a period of 21 days beginning with the date of the notice. There is also an obligation to display at or near the building for not less than 21 days, a notice containing the same particulars as well as an obligation to publish this notice on a website maintained by the local authority similar information. There is then an obligation made in sub-paragraph (4) for the local authority not to determine the application until the expiry of the periods referred to in the notices. Finally, English Heritage had to be sent a copy of the relevant notices. In the case of the first planning application, there were no site notices or local advertisements nor was English Heritage consulted. It is stressed that Sullivan LJ giving the decision of the Court of Appeal in R (Friends of Hethel) v South Norfolk Council [2011] JPL 192 said that:-

“The question for the purposes... of the 1990 Regulations is whether the development would affect the setting of the listed building, not whether it would affect it so seriously as to justify a refusal of planning permission. The extent of the effect, and its significance in terms of the setting of the particular listed building, are precisely the matters on which English Heritage's expert views should be sought.”

It is also said by the claimant that there was an additional legal error made by Sefton because by section 70(2) of the 1998 Act, Sefton was obliged to consider the relevant parts of the development plan which in the present case included HC1 which significantly applies to “development within or adjacent” to a conservation area. The property of both the claimant and the Interested Party were adjacent to the Conservation Area and therefore Sefton was obliged to consider HC1 when determining the planning application of the Interested Party.

Under Policy HC1, developments within or adjacent to Conservation Areas “will be permitted where the appearance and character of the area will be preserved or enhanced”. This entails applicants demonstrating that “their proposals are of a high standard” and that “the scale, form, massing, height, materials and architectural details of the development respects the character of the surrounding buildings”.

The justification for HC1 is explained as being that the “Conservation Area’s designation report and character statement will be used to help determine the effect of a proposal on the character or appearance of a Conservation Area”. Policy MD1 on house extensions includes the criteria that the development “would not cause significant harm to the character of the area”.

A further alleged legal error was that the national planning policy is capable of being an “other material consideration” which requires a local authority to have regard under section 70(2) of the 1990 Act. PPS 5 requires the effects of the development on the setting of a Conservation Area to be assessed and only to be allowed if the public benefit outweighs any harm caused.

In their summary grounds, Sefton denied that “the application site is… within any reasonable assessment of what comprises [the Conservation Area’s] setting”. Their case is that there was no obligation on the officers to address these matters in the report. This approach is in direct conflict with Sefton’s report on the second application and the summary reasons which indicated that the Conservation Area was a matter that had then to be considered.

The position therefore is that as Sefton failed to consider the proximity of the Interested Party’s home to the Conservation Area before granting the first planning permission, it would have to show not merely that considering the Conservation Area would have led to “no different outcome” but that Sefton would have to show that:-

“the decision would inevitably have been the same and the court must not unconsciously stray from its proper province of reviewing the proprietary of the decision making process into the forbidden territory of evaluating the substantive merits of the decision”

per May J (as he then was) in Smith v North Eastern Derbyshire Primary Care Trust [2006] 1 WLR 315 [10] and applied by Cranston J in R (Copeland) v TowerHamlets LBC [2011] JPL 40, 47 [36].

In my view, it is impossible to reach the conclusion that the decision to grant the first planning permission would have been the same if the proximity to the Conservation Area had been considered in respect of the first planning application especially as it was a couple of metres from the application site and would have been visible from it. It must not be forgotten that the effect of the development on the street scene was a major issue and had the Conservation Area issue been identified and consulted upon by Sefton not merely by the claimant but by Birkdale Civic Society and English Heritage as well as Sefton’s Conservation Officer, this would have led to much greater consultation and the outcome of such consultation cannot be safely or confidently predicted.

In reaching this conclusion, I have not overlooked the contention made in the skeleton argument of Sefton which was that the delegated report on the second application stated in respect of that proposal that it “would not have a significant impact on the setting of the Conservation Area due to the location of the application site and the character of the proposal”.

The proposal on the second application was different from that of the first as for example there was not a patio above the garage. In addition consultation with the Birkdale Civic Society, English Heritage and Sefton’s conservation officer and the representations of the claimant and other residents might well have influenced the planning committee to reject the first planning application. The stark fact is that the claimant’s prospect of success on the present application was so high on this ground as to justify an order for costs in the claimant’s favour but as I have explained, there are other reasons why such an order has to be made.

The basis of ground 2 is that Sefton’s committee referred to the Supplemental Planning Guidance but failed to address the parts of it which the development contravened and those were:-

In the light of my other findings, it is not necessary to come to a definite conclusion on this ground or grounds 3 and 4 because the factors, which I have outlined above, satisfy me that Sefton should pay the claimant’s costs to be assessed on a standard basis. I should add that my provisional view is that the claimant is likely to have succeeded on ground 2.

Notwithstanding the able submissions of Mr Tucker, Sefton should pay the claimant’s costs to be assessed on a standard basis if not agreed. After I circulated a draft of the judgment, the parties agreed that Sefton would pay the claimant £68,000 inclusive of all costs.