O'Brien, R (on the application of) v West Lancashire Borough Council

HIS HONOUR JUDGE DAVIES:

Introduction

1. This case concerns the claimant's challenge to the decision taken by the defendant on 22nd September 2011 to grant outline planning permission for the development of a property known as West Haven, Skelmersdale, by constructing three new houses in what is presently the garden of that property.

2. The claimant is Mr Robert O'Brien, a local resident, who lives at 171 Foxfold, Skelmersdale, which is a property which overlooks the garden of West Haven. He has represented himself throughout these proceedings. He has presented his case with determination but also with care, skill and moderation, for which I thank him. The defendant is West Lancashire Borough Council, which is the local planning authority, who has been represented by in-house solicitors and by Ms Reid of counsel, and I thank her for her detailed written submissions and her succinct and helpful oral submissions. The interested party is Mr Hill, the applicant for planning permission, who was served with the amended grounds of claim. He did not file any documents in reply but he did attend this hearing and he made a short address to me. He is the executor and brother-in-law of the late Mrs Walsh who was with her late husband, who pre-deceased her, the owner of West Haven. A further party who features in this case is the Homes and Communities Agency (for short HCA), which is the successor in title to the Commission for the New Towns which is itself the successor in title to the Skelmersdale Development Corporation.

3. The claim as issued on 22nd December 2011 raised a number of separate grounds of challenge, including a number of what appeared to be merits based challenges to the decision. Permission was refused on all grounds on paper by His Honour Judge Gilbart QC who, in addition to concluding that none of the grounds had any substance, also considered that the claimant had delayed in bringing the application. He also made an order that the claimant should pay a sum which he assessed at £8,700 in respect of the defendant's costs of preparing the acknowledgement of service.

4. At the renewal hearing before me on 27th March 2012 the position had changed somewhat in that although the claimant realistically accepted that his merits-based challenges to the substance of the decision were not properly arguable, he identified certain grounds of challenge which he contended were properly arguable, which related to (1) what he contended was a failure on the part of Mr Hill's planning agents to comply with the obligation to serve notice of the planning application on all of the owners of the land the subject of the application, in order to allow them to make representations and (2) what he contended were failures to comply with the consequential obligation to provide a certificate to the defendant as the planning authority confirming that the applicant had complied with the notification obligation.

5. One difficulty which arose at the renewal hearing was that one of the grounds raised an issue as to the ownership of a particular part of the site, where the claimant had adduced evidence only shortly before the renewal hearing in support of his argument as to that issue. The defendant, through Miss Reid, contended that it had not had a sufficient opportunity to consider that new material, but there was significant disagreement between the parties as to the responsibility for the evidence being adduced late.

6. The view that I took on that occasion was that that because there was insufficient time available on that occasion to deal properly with those issues and the question of permission, and also because I took the view that there was an arguable issue in relation to delay, the appropriate course was to refuse permission in relation to the grounds which I was satisfied were not arguable, but to adjourn the potentially arguable grounds, what I may describe the notification and the certification issues, for a rolled up hearing. I also gave case management directions, requiring the claimant to serve amended grounds of claim and supporting documents, for the defendant to serve amended grounds of defence and supporting documents and for the claimant to have the right to submit a reply. All of those directions were complied with and I have received and read those documents, together also with a skeleton argument produced by the claimant and a bundle of authorities produced by the defendant to which I have been referred in the course of the hearing.

7. Having had the benefit of reading the docs submitted in relation to the notification and certification grounds I am quite satisfied that I should give permission in relation to those grounds and I do so and proceed to consider the merits of the arguments on those grounds, albeit that I leave the issue of delay open at this stage.

8. In short, the position is as follows. The defendant accepts that the applicant for planning permission failed to comply with his obligation to notify HCA, who was at the time the registered legal owner of one part of the site, being a strip of land to the south of the property, of the application. However the defendant contends that this is not fatal because: (1) this was not a deliberate or conscious non-compliance by the applicant with his notification obligation; (2) in any event it does not personally affect the claimant, who is not and does not claim to be the owner of that part of the land; (3) it has caused no prejudice to the registered legal owner, HCA, who it says has made it clear that it has no interest in or objection to the planning application; (4) it follows therefore that there is no justification for quashing planning permission in consequence of that admitted non compliance.

9. The claimant however retorts that there is no warrant for not quashing planning permission, where there has been an admitted or established failure to comply with the notification requirements and, even if that is wrong, the circumstances of this case are such that the courts ought not to exercise a discretion not to quash the planning permission in circumstances where there has been an admitted non-compliance.

10. In relation to a further area of the site, although there is an issue between the parties as to whether or not the applicant for planning permission was the legal owner of that part of the site, which comprises a ditch lying along the northern boundary of West Haven and along part of the western boundary the defendant, without formally conceding the point, says that even if that area of land was not owned by the applicant for planning permission that does not materially advance the claimant's case any further because it is clear, the defendant submits, that even if it is not owned by the applicant, it can only sensibly have been owned by HCA, so that precisely the same arguments apply in relation to any failure of notification and certification as apply in relation to the southern strip of land to which I have already referred.

11. The claimants however contends, firstly, that by reference to recent developments involving the Land Registry, it is possible that he and other adjacent land owners are owners of part or parts of this area and, secondly, for the same reasons as advanced in relation to the southern strip nonetheless there has been a non-compliance with the notification and certification requirements and the decision should therefore be quashed.

12. The third ground relates to a yet further area of the site, which is a further strip of land lying along the southern boundary of West Haven. In relation to that strip of land, it was known by the defendant and the applicant for planning permission at the time of the application that the defendant was the owner of that strip of land and it is accepted that the defendant was notified in that capacity of the application for planning permission and the requisite certificate of notification was completed to that effect.

13. However, the claimant contends, and the defendant accepts as factually accurate, that there was an error in the certificate, in that it incorrectly stated the date of service of the notice on the defendant. Although the defendant contends that this was simply an error of procedure as opposed to an error of substance, the claimant contends: (1) that it was an error of substance, because the actual date of service postdated the date of the planning application itself, which the claimant submits was contrary to the requirements of the planning legislation; (2) that the error in the certificate was not an innocent error but a deliberate misstatement intended to conceal that fact, so that the non-compliance should simply not be excused as a mere irrelevant error of procedure.

Notification and certification requirements

14. I must begin by referring to the rules in relation to notification and certification. The starting point is section 65 of the Town and Country Planning Act 1990, under which provision is made for a development order to make provision requiring notice to be given of any application for planning permission, for any applicant for planning permission to issue a certificate as to the interests in the land and for publicising such application, and as to the form, content and service of such notices and certificates. By subsection (2):

"Provision shall be made by a development order for the purpose of securing that, in the case of any application for planning permission, any person (other than the applicant) who on such date as may be prescribed by the order is an owner of the land to which the application relates ...,is given notice of the application in such manner as may be required by the order."

15. By subsection 65(5):

"A local planning authority shall not entertain an application for planning permission unless any requirements imposed by virtue of this section have been satisfied."

16. Section 327A of the Town and Country Planning Act 1990, introduced with effect from 2004, provides by subsection (2):

"The local planning authority must not entertain such an application if it fails to comply with a requirement [imposed by or under the Act]."

17. There has been a debate before me, to which I shall return, as to whether or not that provision introduces any more different or exacting obligation than does section 65(5).

18. The Development Order in force at the relevant time, made pursuant to section 65, is the Town and Country Planning (Development Management Procedure) (England) Order 2010, and I have been referred to certain articles forming part of that order. In particular, I have been referred to Article 11, which makes provision for an applicant for planning permission to give notice of an application to any person other than the applicant who, on the prescribed date, is an owner of the land to which the application relates, by serving the notice on every such person whose name and address is known to the applicant and, where the applicant has taken reasonable steps to ascertain the names and addresses of every such person but has been unable to do so, by publication of the notice after the prescribed date in a newspaper circulating in the locality in which the land to which the application relates is situated. So that in other words the obligation upon the applicant is to serve notice on those owners whose name and address he knows but where he is unable, having taken reasonable steps, to ascertain those details he must publish the notice in a local newspaper.

19. I have also been referred to Article 12 which provides:

"Where an application for planning permission is made the applicant shall certify, in a form published by the Secretary of State or in a form substantially to the like effect, that the requirements of article 11 have been satisfied."

20. I should also at this point deal with the argument between the parties about when notice must be given to owners. As I have already said Mr O'Brien contends that it is required that the applicant must serve notice before he makes the application for planning permission. In support of that argument he relies particularly on paragraphs 15 - 17 of a decision of Newman J in R (on the application of Pridmore & Ors v Salisbury District Council [2004] EWHC 2511 (Admin). In that case the learned judge, having referred to section 65 TCPA 1990, to which I have already referred, and the relevant articles of the relevant order then in force, said in paragraph 16:

"It follows that, once an application has been submitted without due notice to an owner, the requirement cannot be fulfilled."

He was referring there to the notification requirements under the relevant order.

21. In paragraph 17 he said:

"It can be seen from the detail of the above provisions that the clear intention of the statutory scheme is that an owner of land included in the proposed development should be given prior notice of an intention to submit a planning application and that the obligation to give such notice falls on the applicant for permission."

22. Mr O'Brien also relied upon guidance published by the North Somerset Council, exhibited to his amended grounds, which provides general advice to applicants for planning permission. Under the question: “What happens if an incorrect certificate is submitted?” it reads:

"If an incorrect ownership is submitted, this cannot be remedied by simply replacing it with a replacement certificate, completed at a subsequent date before the application is determined. This is because planning law requires that where any person other than the applicant is the owner of the land, their notice has to be given before the making of the application."

23. In response to those arguments Ms Reid contends firstly that the court should not attach any weight to guidance provided by a particular local planning authority where that is not the particular authority involved in this case and secondly that whilst of course the court should pay due regard to the observations of Newman J in the Pridmore case, those observations are in no way binding or determinative because the comments in that case were obiter, in the sense that the point was not directly raised as an issue for determination in that case, and it does not even appear to have been the subject of argument.

24. Ms Reid submits that there is no express or implicit requirement in the TCPA 1990 to the effect that the notice must predate the submission of the planning application, and nor is any such requirement to be found either expressly or implicitly in the articles of the relevant Order to which I have referred. In particular she says that Article 11, in particular subsection (6), which appears to be the equivalent of the article referred to by Newman J in the Pridmore case, does not fix the date when the notice must be given; it simply fixes the relevant date for ascertaining whether someone is an owner of the land, for the purpose of determining who needs to be given notice.

25. She also referred me to other sections of the TCPA 1990 and other paragraphs of the Order and submitted that those provisions make it clear that all that is required is that the notice should be served at least 21 days before the planning application is determined and that, in practice, it need only be served before the time when the planning authority must notify the applicant that his application is deemed either validly or invalidly made. She referred in particular to the use of the word "entertain" in subsection 65(5) and to the wording of Articles 10(2) and subparagraph (5), which make provision for the certificate to be received before the application is acknowledged and for notification of invalidity to be sent. She also referred to Article 28(1)(b) which makes provision for those served as owners to make representations within a 21 day period from service of the notice. Finally she referred me to Article 29, which stipulates the timetable from receipt of a valid application to the date of notice of determination. I hope I will be forgiven if I do not set out the detail of all of these provisions in this judgment.

26. In my judgment Ms Reid’s analysis is both compelling and correct. If the Act or the Order had intended to make it clear that the notification had to take place before the application was issued, then it would have been a perfectly straightforward matter to do so. It is clear that there is no express requirement to that effect, nor in my judgment can one implicitly be carved out from the terms of the Act or the Order.

27. In reaching that conclusion I have not overlooked the fact that it does appear from the form of application used in this case, which appears to be mandatory as required by Article 6 of the Order, that it is envisaged that the certificate should form part of the application notice itself, and therefore that it is envisaged that notice will be given before the date of the application. I do not however consider that this is a decisive factor. The fact that it is envisaged that in normal circumstances notice will be given before the application is submitted does not, I consider, compel a conclusion that the Act or the Order require notification to be given before the application is issued or compel the conclusion that if notice is not given before the application is issued, then the application itself is not as required by the Act or the Order. I am therefore satisfied that there is no express or implied obligation that notice should be given before the application is made.

28. Notwithstanding that conclusion I will in case I am wrong on that point need to consider the impact of any failure to comply with the rules. This involves a consideration of the second legal issue where there is a debate between the parties, which is what is the consequence in law of non-compliance with the notification and certification requirements of the Act and the Order?

29. I have already referred to subsection 65(5) of the TCPA 1990. The first relevant authority to which my attention has been drawn is the decision of the Court of Appeal in the case of Main v Swansea City Council & Ors [1985] 49 P & CR 26. That was a decision on the equivalent requirements of section 27 of the Town and Country Planning Act 1971, the wording of which contains the same mandatory wording ("shall not entertain an application for planning permission") as does section 65(5).

30. In that case, as it appears from the head-note, the relevant facts were as follows. An application was made for outline planning permission for the development of land, and a certificate under section 27 of the 1971 Act stated that the requisite notice of the application had been given to all other owners of the land. It identified the local planning authority as being the only other owner of the land but in fact a small, albeit not de minimis , part of the land was in fact owned by another person who was not specified and whose identity was and subsequently remained unknown. The certificate however did not state, as it should have done under such circumstances, that the requisite notice had been published in a local newspaper as required by section 27 of the Act. In January 1977 the local planning authority granted outline planning permission and approval of reserved matters was subsequently granted. The scheme involved did not involve development of the land owned by the unspecified person but the applicant, who made no claim to be the owner of that plot of land, nonetheless applied for judicial review complaining of that non-compliance.

31. His application was dismissed by Woolf J (as he then was) and by the Court of Appeal on appeal. The Court of Appeal held that a factual error in a certificate under section 27 of the 1971 Act might be no more than an irregularity which did not go to the jurisdiction of the local planning authority to entertain the application for planning permission, but that a factual error, even if not so gross as to make the certificate no certificate at all, was not necessarily a mere irregularity in respect of which an applicant was not entitled to relief. It held that in that case the defects in the certificate were sufficient in principle to entitle the court to strike down the subsequent grant of outline planning permission in certain circumstances, but that the grant was not a complete nullity and the decision was one for the discretion of the court. On the facts of that case the court did not exercise its discretion to quash the grant of planning permission.

32. It is clear that in that case, as appears from page 31 of the report, the claimant had also argued that the applicant for planning permission and the planning authority knew that the certificate was false, but that this contention was rejected on the facts both by the trial judge and by the Court of Appeal.

33. It is also clear that the Court of Appeal considered that the provisions of the Act in force at that time were designed to ensure that owners of land were given notice of applications affecting their land, so that if the notification requirement was not complied with, even if due to honest error, then on the application of the owner of the relevant piece of land the permission might be set aside. However it is also clear that the Court of Appeal, having considered the authorities, was satisfied that the court did have a discretion whether or not to quash. What they said, at page 37 of the report, was that the court must consider the consequences of the non-compliance, in the light of the concrete state of facts and the continuing chain of events in the particular case. They recognised that the court must look not only at the nature of the failure but also at such matters as the identity of the applicant for relief, the lapse of time, the effect on other parties and on the public and so on. They said that in that case they had no doubt that the defect in the certificate was sufficient to enable a court to strike down the subsequent grant in certain circumstances, but equally they had no doubt that the defects were not such as to render the grant a complete nullity, and that the matter was therefore one of discretion and that, as I have said, they declined on the facts of that case to exercise their discretion to strike down.

34. I was also referred by Miss Reid to a subsequent decision of Pill J (as he then was) in the case of R v Secretary of State for the Environment ex parte Kent & Ors (1989) 57 P & CR, page 431. That decision was subsequently upheld by the Court of Appeal, although seemingly without further discussion of the point relevant to this case. The judgment of Pill J is relevant to this case because the case concerned an attempt, similar to the present, by an owner of neighbouring land in question to quash a grant of planning permission on the ground that the certificate of service on the owner of the land did not comply with the requirements of the Act and the Order. At page 436 of the report Pill J, having referred to the decision in Main v Swansea City Council , said this:

“The defect may have been one which would have entitled the court to strike down the planning permission on the application of an owner who had not been notified, but the fact that the owner's agent is named and not the owner himself does not avail the present applicant, and neither do the alleged defects in the certificate. In any event, I would exercise my discretion against granting judicial review to the applicant on that ground.”

35. Miss Reid submitted that this was another illustration of the court considering the relevant circumstances and deciding that an application made by someone who was not the owner of the land in question and who could not demonstrate prejudice by anyone as a result of the non compliance was not sufficient to justify planning permission being quashed.

36. Mr O'Brien referred me however to the decision of Newman J in Pridmore to which I have already referred. In that case the applicant for planning permission had failed to comply with the notification and certification requirements, and it also appears (from paragraphs 8 through to 14 of the judgment) that both the applicant for planning permission and the planning authority were aware of these non-compliances before the planning permission decision was made but continued nonetheless to go on and to deal with the application.

37. It is clear from paragraph 39 of the judgment that Newman J was thoroughly unimpressed with the conduct both of the applicant for planning permission in particular and the planning authority and, in paragraph 40, went on to conclude that for the court in those circumstances to exercise its discretion would come close to undermining the mandatory scheme of the legislation. It is clear therefore that he distinguished the decision in Main itself on the basis that the facts of the two cases were completely different. It is also clear from paragraph 41 that on the facts of that case he was satisfied that there was prejudice to the applicants as a result of the non-compliance with the notification requirements.

38. It is clear in my judgment therefore that the decision in Pridmore does not purport to lay down any general principle nor in any way to seek to depart from the approach in Main , from which it is clear that my task is to consider carefully the facts of this particular case and to decide, once I have done so, whether or not the circumstances are such that I should exercise my discretion to quash the planning permission.

39. There is one final point of law which I need to deal with. As I have indicated, Mr O'Brien submitted that the effect of section 327A of the TCPA 1990 (to which I have already referred in paragraph 16 above) was different and was more onerous than that of section 65(5), and that it took away any discretion in the court to excuse a failure to comply with the notification and certification requirements.

40. In that respect have considered the note by the learned editors of the Encyclopedia of Planning Law and Practice to this section, which reads as follows:

"This section ensures that compliance with these requirements is mandatory and that a local planning authority must refuse to entertain such an application that fails to comply. This may well have unintended side effects. It will open up a new route of challenge by third parties to the validity of planning permissions. At the moment the position is governed by Main v City of Swansea , where in relation to ownership certificates the Court of Appeal declined to accept that the validity of a planning permission should hinge on the distinction between serious or minor irregularities and laid down a more discretionary test requiring regard to be had to all of the circumstances, including not only the nature of the irregularity but also such matters as the identity of the person applying for relief, the lapse of time and the effect on other parties and public. Once compliance becomes mandatory, the court might not so readily ignore a failure to comply even in the case of a technical failure. The test in section 327A is absolute. It is not placed at the discretion of the local planning authority to decide whether the application complies or not, the consequence is that the question of whether the local planning authority has authority to entertain the application becomes one purely of law, although the court retains its discretion as to the granting of a remedy."

41. It is clear, in my judgment, that the claimant can derive some support from that note but it is equally clear that the editors’ view is that the court retains a discretion.

42. I have not been referred to, nor am I aware of, any subsequent authority in relation to section 327A. It appears to follow that the opinions expressed by the editors of the Encyclopedia are no more than that at present. Ms Reid submitted that there is no obvious difference of substance between the wording of section 65(5) and section 327. I agree with that submission. I also note that the editors take the view that the court retains its discretion. In those circumstances I am satisfied that the approach that I should take, even under section 327A, is the same as the approach taken by the Court of Appeal in Main v City of Swansea .

The relevant circumstances

43. What I must do now is to consider the relevant circumstances. I should begin by considering the circumstances in relation to the notification given to the defendant itself and to the question of incorrect certification. This is something which is dealt with by the defendant's witness, Therese Maguire. She is a senior planning officer employed by the defendant, and has been employed by the defendant with a total of 6 years' experience working in planning development control. Part of her duty involves the consideration of planning applications and the composition of reports for the Planning Committee. She is the case officer who dealt with the application which is the subject of this challenge.

44. In her second witness statement, made on 17th February 2012, she set out in paragraph 3 the chronology of events in relation to the relevant certificate. She confirmed that Mr Hill's agent submitted the planning application which was received by the Council on 7th March 2011, it having been dated 3rd March 2011, but that Certificate B submitted with the application had not been signed or dated and, in addition, the copy of Notice 1, which is the notice that had been served on the defendant as land owner, was incomplete because paragraph D had not been completed. She attached to her witness statement a copy of the ownership certificate and the notice which confirmed that this was the case.

45. She said that following receipt of that application it was deemed to be invalid for reasons specified in a letter which was written to the applicant's agent on 11th March 2011. What that letter said was that:

"Having checked the application it cannot proceed until I receive the following:

1. The certificate of ownership Certificate B submitted with the application has not been signed or dated and no date was entered at point D on Notice 1. Please complete and return to this office the attached Certificate B and in addition complete and serve Notice 1 on the Estates and Valuation Department. "

She says the original certificate was returned to the agent with that letter.

46. She records that on 21st March 2011 she received from the agent a copy of an amended Certificate B and a copy of an amended Notice 1. She says that having checked that she took the view that the application became valid on receipt of the information on 23rd March 2011.

47. The Notice 1 form recorded, accurately, that notice had been served on the defendant on 18th March 2011, and received by them on the 21st March 2011. However, the copy of the certificate, which was also submitted and received on 21st March 2011, was inaccurate because it incorrectly recorded that the date that the Notice had been served was 3rd March 2011 and the signature was also dated 3rd March. As I say, the defendant accepts, as it must do, that the certificate was inaccurate in that regard.

48. However, although Mr O'Brien argues that this was a deliberate misstatement by the agent because, he submits, the agent must have believed that it was necessary for the notice to have been served before the certificate itself was lodged as part of the application, that is an argument which, in my judgment, is clearly inconsistent both with what Ms Maguire says in her witness statement and also with what was written contemporaneously in the letter of 11th March 2011. I say that because it is clear from the passage which I have read out that what was being anticipated by the defendant in the letter of 11th March was that the applicant's agents would send a fresh Notice to the Council and would complete a new Certificate B without also having to submit a fresh application. It is obvious, in my judgment, that the defendant must have been expecting a completely new notice and a completely new certificate which would, inevitably therefore, postdate the application itself. It also follows that the agents, having received that letter, must have been aware of that fact and, indeed, they did serve the new notice, as is known, on 18th March 2011. There is no evidence therefore to support the claimant’s argument that this was a deliberate attempt to evade the prescribed timetable. I am quite satisfied therefore on the balance of probabilities on the evidence before me that this is not a case of a deliberate attempt to deceive, either by the applicant's agents or by the defendant itself. It is simply an error, an innocent honest error, in completing the certificate.

49. Secondly, I have to consider whether or not the defendant's position as the relevant land owner was in any way adversely affected or prejudiced by that error. The answer on the evidence quite clearly in my judgment is "no". I say that because Ms Maguire has also attached to her witness an email dated 16th February 2012 from Rachel Neale, who is an Estates and Valuation Manager in the Housing and Regeneration Department of West Lancashire Borough Council. In it she confirms that the second notice was received on 21st March 2011 and that the Council, as land owner, was aware of the planning application for the above property and did not wish to make any representations to the planning authority. That is evidence which I consider I can properly accept, not least because of course it is clear that there was no representation received in relation to planning at any time from that department, in circumstances where since the decision itself was not made until a Planning Committee Meeting on 1st September 2011 (with the decision only being formally made on 22nd September 2011), which of course gave substantially more than 21 days from the date of service of the notice for the Council to have made representations had it so wished. It is obvious therefore in my judgment that there can be no question of there having been any prejudice to the Council in its capacity as land owner through any error or defect either in the notice or in the certificate.

50. I should also at this point deal with a further argument advanced by Mr O'Brien, which was to submit that even if there was no prejudice suffered by the Council as land owner in relation to the error in the certificate, nonetheless the certificate itself was something which was a public document, so that adjoining landowners such as him, or members of the public generally, were entitled to complain if the certificate was erroneous. I do not accept that argument. I am quite satisfied that Ms Reid is right when she refers me to the relevant Articles of the Order and submits that the reason for the certification requirement is simply to enable the applicant to confirm to the planning authority that the notification requirements have been complied with, and that it is not a document which is intended or required to be publicly displayed or relied upon by the public at large.

51. I turn next to the circumstances in relation to the southerly strip of land, in respect of which the defendant accepts that it should have given notice to HCA. It is now accepted by the defendant that the legal title to that strip of land, which was originally owned by Skelmersdale Development Corporation, remained registered at HM Land Registry in the name of HCA as successor in title to Skelmersdale DC. That is apparent from the office copies obtained from the Land Registry, which are exhibited to Ms Maguire's first witness statement.

52. However it is also apparent from the documentation obtained from the Land Registry that on 19th June 2000 the land was transferred by the Commission for the New Towns (which as I have already said, was the intermediate successor in title between Skelmersdale Development Corporation and HCA) to Mr and Mrs Walsh, but that the transfer itself was never registered, which explains why HCA remained the registered owners of the land.

53. As a result the defendant accepts, in my judgment rightly, that it was necessary to serve HCA because, under the principles applicable to registered land, it is the registered legal owner who is deemed to be the legal owner. Since Mr and Mrs Walsh as buyers in occupation would enjoy only an equitable title, the registered legal owner, HCA, was the owner who had to be notified.

54. Why were they not notified? That is something which Ms Maguire explains in her first witness statement. In paragraph 7 she records that Mr O'Brien had, by letter dated 20th April 2011, sent written notice of his objection to the application. It set out a number of reasons why Mr O'Brien objected to the application. The first reason given was that:

“The applicant is not the sole owner of the area under proposal. The property has never been registered with the Land Registry. When the property is finally registered it will show that the original boundaries do not cover all the land within the proposal. Until the property is registered no further progress should been made on the application until ownership of the land is verified.”

55. It appears that what Mr O'Brien was intending to refer to in that paragraph was the issue of the ditch, to which I shall come on to deal. He did not however specify what his concerns were. However it is clear, nonetheless, that Ms Maguire became concerned as a result of this letter and further representations received from a local councilor to ensure that there were no difficulties in relation to third party land ownership.

56. In paragraph 12 of her witness statement she goes on to say that as a result she requested a Land Registry search, the results of which confirmed that the majority of the site was unregistered, but that the search also highlighted that a small portion of land close to the southern boundary of the site was registered to HCA. This is the land to which I now refer. She says that she asked the Council's Estates and Regeneration Team for advice on this matter. She says that the advice given, which was based on the details of the transfer form to which I have referred and a conversation held with HCA, was that the land had been transferred to Mr and Mrs Walsh and that HCA no longer had any claim on the land subject to certain provisions outlined within the transfer document itself. She said that when subsequently confirming his involvement with the land the applicant stated that the previous owner of the land had been Mrs Walsh alone. She said that the estates team also confirmed that HCA had considered the details of the application and were satisfied that the proposal would not breach the provisions of the transfer.

57. Mr O'Brien submitted that the decision not to notify HCA was not simply a mistake, but was a deliberate decision on the part of the applicant and/or the defendant. However I am quite satisfied, on the basis of Mrs Maguire's witness statement, that it was simply an honest mistake. I have no reason not to accept the accuracy of what she says in paragraph 12 of her witness statement. Indeed what she says there seems to me to make perfect sentence: the reality as appears from the transfer is that it is obvious that HCA had disposed of their interest in the strip of land to Mr and Mrs Walsh. Although that was ineffective to transfer legal title due to non registration I have no doubt that it was effective as a matter of equity, so that HCA perfectly reasonably held the view that so far as they were concerned they were no longer in substance the owner of the land. In those circumstances, it does not seem surprising to me that the decision was taken that the applicant, as executor of the will of Mrs Walsh, was entitled in effect to take the view that it was his land that was included within the application. That was a mistake, as the defendant now accepts, but I am satisfied that it was no more than a mistake.

58. Was HCA's position adversely affected by the mistake? Ms Maguire makes it clear that at the time their view was that they were not interested in the land and that they did not consider that the proposal would breach the provisions of the transfer form.

59. That view has been supported by a further letter obtained from HCA by the defendant, which is attached to the third witness statement of Ms Maguire made on 8th June 2012, which is a letter dated 7th June 2012 and written by Mr Currie, an estates surveyor with HCA. He said that HCA did not have any plans to pursue the question of establishing ownership of the land. He expressed the view that even if HCA did own a small strip of land it would have a nominal value, at best. He confirmed that in his opinion HCA's position had not been prejudiced as a result of not being notified of the recent planning application and that HCA had no substantive planning objections which it would have liked to have raised. He went on to say, in relation to the strip land with which I am now dealing:

"I confirm that HCA does not claim to own a freehold or leasehold interest in this land. Further, HCA does not consider it was prejudiced in respect of the recent planning application having regard to any interest which it may have in respect of this land and it has no substantive planning objections or representations that it would have wished to make in any event."

60. Mr O'Brien has criticised this letter on a number of grounds. Firstly, he has questioned Mr Currie's authority to state HCA's position. In his response he has attached email communications which he has exchanged with Mr Currie, in particular one dated 13th June 2012 where he wrote to Mr Currie asking him to confirm his position at HCA and that he had authority to make the statements he had made, asking him to state who gave him that authority. An email in reply was sent on 14th June 2012 by Mr Currie, confirming that he was employed by HCA as an estate surveyor and that "both my letter of 7th June sent to West Lancashire Borough Council and this email were discussed with my line manager, Peter Nicol, who is the national sales manager before they were sent out."

61. Mr O'Brien has nonetheless questioned whether that is a sufficient establishment of authority. I am quite satisfied that it is. What is more I am satisfied that if Mr O'Brien had any reasonable grounds for continuing to question Mr Currie’s authority he would have been entitled to take that further, either with Mr Currie direct or with his identified superior or HCA's Board of Directors, but there is no suggestion by him that he has done so. I have no reason to believe that Mr Currie is not fully entitled to make the statement which he has made. Looking at the matter more broadly there is no rational basis why HCA would have had any interest in making planning representations. The reality, as I have said, is that in 2000 they regarded themselves as having transferred this strip of land to Mr and Mr Walsh. They did, it is true, take the benefit of a restrictive covenant in the transfer, but that would not, in my judgment, be a relevant consideration so far as opposing any planning application is concerned. There is no basis identified for believing they would have had any interest in making any representations in relation to planning matters.

62. So far as the restrictive covenant is concerned, Mr O'Brien has suggested that it would be breached if part of the strip of the land was used for the purposes of an access road. Whether or not that is right is not I consider for me to express any opinion in these proceedings. Even if it is right, as Ms Reid submitted that is a private legal issue, which is not a relevant consideration for planning purposes. Nor indeed would it be a relevant consideration for planning purposes if, as Mr O'Brien suggested, it might be a legally enforceable building scheme which could be enforced by legal proceedings by members of the estate generally. These points, and indeed the further point that the land might have a value which HCA might be entitled to pursue, are all private law matters which are irrelevant to planning considerations.

63. In the circumstances I am satisfied, as I have said, that HCA's position has not been prejudiced so far as this non-compliance is concerned. I am also of the view, for the same reasons as apply so far as the defendant's own land ownership is concerned, that it is not open to Mr O'Brien to argue that even if HCA's position is not adversely affected, the wider public's position was adversely affected because, as a result of a failure to give notification, they were unaware that HCA still retained legal title to that strip of land. As I have already said, I am satisfied that Ms Reid is right when she submits that the purpose of certification is not to provide a public record of land ownership; it is for the purpose of the planning authority being satisfied that the applicant has certified that it has performed its obligation in relation to notification.

64. The last aspect of this case which I need to deal with in terms of making relevant findings relates to the ditch. Mr O'Brien’s case is that he had, before the planning application was made, advised the defendant's representatives that he was querying ownership of the ditch, although as I have observed that was not stated in terms in his letter of April 2011. Nonetheless his argument, in effect, is that: "I did not know what the position was but I wanted to ensure that the defendant complied with its obligation to find out, they were the ones who could and should have done so, and if they had then it would have saved everyone a lot of time and money."

65. However, in my view it is not the case that the defendants are obliged, as planning authority, to make enquiries themselves as to ownership of the land in order to satisfy themselves that the applicant had complied with his notification obligations. It is clear from Article 28(1)(b) that the only time and circumstances in which the local authority are obliged to consider the question of ownership is when they have to satisfy themselves that anyone who makes a representation is an owner of a part of the land. They do not have to do any more, in my judgment, than that.

66. In any event, it seems to me that when I consider Ms Maguire's evidence as to what she did in paragraph 2 of her third witness statement, she did in fact go to and inspect the site, and I have no reason not to accept her evidence that so far as she was concerned, on the basis of the evidence she had before her and her view of the physical extent of the site, that there was no reason for her to believe that there was any issue as to the ownership of the ditch, which appeared, on the face of it, to be part of the land owned and used by the owners of West Haven.

67. Indeed I note that it was not until after the issue of these proceedings that Mr O'Brien himself was able to obtain from various sources, including the defendant itself and the Land Registry, sufficient evidence to justify him in reaching a firm conclusion that the ditch does not belong to the applicant or to the previous owners of West Haven. In particular, in his submissions before me, he has referred to documentation to support his argument that the current ordinance survey plan is incorrect, and he has referred to earlier ordinance survey plans, dating back to 1959 and earlier. He has referred to the previous title plan for a previous registered title. He has referred to previous title deeds. He has referred to photographic evidence dating from 1940 and 1960 and to his own knowledge as to what he says was the position on the ground in 1980 and thereafter, and he has referred to the evidence of transfers of part of the westerly section of the ditch from the predecessor of HCA to various house owners on the other side of the ditch. Finally he has made reference to the legal hedge and ditch presumption. He has also obtained, at his own expense, preliminary reports from two surveyors who, provided with that information, confirm his own view.

68. It is clear that Mr O'Brien has devoted considerable time and attention to investigating and seeking to establish this aspect of his case. I accept that the information he has produced does in my judgment create a powerful argument that the ditch may in fact in strict legal terms have been retained by the predecessors of HCA and may, therefore, not have been conveyed to the owners of West Haven. I say "may" because it is not the function of this court to make any final determination of what may become a boundary dispute or to make any determination which could be binding upon Mr O'Brien, HCA or Mr Hill. Indeed it is obvious that even if the claimant is right in his submissions there may well be powerful counter-arguments in relation to adverse possession or limitation.

69. I do, however, consider that the defendant was right to accept, pragmatically, that the claimant has done enough to establish an arguable case to the effect that it is possible that the ditch is not owned by the applicant for planning permission. The defendant's argument is that this really gets Mr O'Brien nowhere, because all the available evidence indicates that if the owners of West Haven did not own the ditch, then the only other realistic contender is HCA, and exactly the same arguments would apply here as apply to the area of land which they accept HCA did in legal terms already own.

70. Perhaps seeing the potential difficulty, the claimant referred in his closing submissions to me to recent communications from the Land Registry, suggesting that there may be a strip of land, as I understand it, lying between the fence to the rear of his property and those of his neighbours and a line of trees on his side of ditch, which according to him might be up to 1 metre wide, which may in fact have been conveyed by HCA to him and to the other house owners along that boundary line. He made it clear to me that he was not positively asserting that he owned that strip of land but he said that it was clear that the Land Registry considered that that was a possibility. He submitted that this strengthened his argument on the impact of non notification, because that would mean that there was at least potentially a further series of owners of part of the site, the subject of the application for planning permission, who had not been notified.

71. However, I have to say that, in my judgment, that argument is a purely speculative argument. It is not something which has been advanced in the claim thus far put before me, either in the amended grounds or the original grounds or the claimant's response. In those documents the claimant was saying in terms that on his understanding of the position, it was HCA who was the owner, if anyone was, of the relevant ditch.

72. But more importantly what this court is concerned with, in my judgment, is not the position as it may appear today, it is the position as it appeared at the time of the planning application. No one is suggesting, and in my judgment for good reason, that it would have been apparent to anyone at that time that there was any possible owner of this ditch, if it was not the owner of West Haven, other than HCA. There is no basis for any suggestion that anyone was saying or would have said to Ms Maguire when she inspected the site that it was possible that Mr O'Brien or the other house owners along that line of the boundary owned some strip of the land along that boundary. Indeed it is not immediately apparent to me, if there is a dispute about that 1 metre strip, that it was even included in the application itself which, as has been observed, was made by reference to a very broad boundary line.

73. Furthermore, and just as importantly, it is clear from the evidence submitted by Ms Maguire in her first witness statement that not only Mr O'Brien but at least two of those other owners also submitted written objections at the time to the planning application. There is no basis for any suggestion therefore, in my judgment, that even if it had been necessary for the applicant to have served notice on the adjoining house owners as possible owners of a possible strip of land along the boundary, that there has been any prejudice in terms of their having been unable to make planning related objections at the relevant time.

74. More generally, it does not seem to me that the notification provisions of the planning legislation are intended to apply to circumstances where there is or there may subsequently be shown to be some dispute about a modest strip of land along a boundary, when there is no suggestion that it is relevant to the planning issues which have to be determined by the planning authority and when there is no suggestion that anyone who would have been entitled to make representations did not in fact have the opportunity to do so by reason of the non notification.

75. The final point relevant to discretion which I must deal with is the question of delay. As I have already said, it is common ground that it was at a meeting which was attended by the claimant on 1st September 2011 that the Planning Committee resolved to grant planning permission. There was then some further correspondence which led to a delay and the final determination was made on 22nd September 2011. The claim was issued just within the 3 month period on 22nd December 2011.

76. The claimant says that this was not a case where he did nothing for that 3 month period. He observes that there was a lengthy exchange of correspondence with the defendant, including a pre-action protocol letter and response, and that he was also actively pursuing the alternative remedy of a complaint to the local government ombudsman, which was not rejected until mid-December 2011. He also reminds me that he is of course someone acting in person without the benefit of legal training or legal advice, and he also says that he did try to issue the application earlier at the beginning of December but was unable to have the application issued because he had been unable to provide a copy of the decision.

77. The defendant, however, says that whilst all this may be so, it is clear from the authorities that the obligation, particularly in planning cases, is to make an application for judicial review promptly and that the 3 month period provided by the Civil Procedure Rules is a maximum, not a permissive figure. In particular I have been referred by Ms Reid to the observations of Keene LJ in the Court of Appeal in the case of Finn-Kelcey v Milton Keynes Council [2008] EWCA Civ 1067. In that case he makes the point that although one cannot in planning cases bring in by the back door the 6 week period applicable to challenging decisions made in planning matters by the Secretary of State, nonetheless the existence of that shorter time limit is a relevant factor. He also made the points that compliance with a pre-action protocol is not a justification for delay, nor indeed is delay by the planning authority itself, and finally that the strength of a case is a relevant factor.

78. It does seem to me that although there may be reasons for Mr O'Brien only issuing this claim at the last minute, nonetheless he did not make this application as promptly as he could or should have done and he should and could, in my judgment, have done so significantly earlier.

Conclusions in relation to the exercise of discretion

79. Drawing all of these threads together, what are the important factors? In my judgment, it is a very significant factor that I have acquitted the defendant and indeed the applicant of any deliberate bad faith as regards not notifying HCA or any other potential owner of the application and in relation to the errors on the face of the certificate. I am satisfied that where there were mistakes, they were made in good faith and without intention to deceive.

80. Secondly, it is also a very significant factor, in my judgment, that the claimant is not and cannot credibly claim to be the owner of any part of the site the subject of the application; specifically he cannot claim to be the owner of the southern strip of land or the owner of the lion's share of the northerly or westerly ditch.

81. Thirdly, it is a very significant factor, in my judgment, that those who have been directly affected by any non-compliance, specifically the defendant as land owner and HCA, have made it quite clear, in my judgment credibly and reasonably, that they do not regard themselves as having been prejudiced because they never intended and did not in fact make any representations in relation to the grant of planning permission. I am satisfied that if HCA has any interest, it is a purely private interest which is not relevant for planning matters.

82. The fourth relevant factor in my judgment is that insofar as Mr O'Brien or other adjoining neighbours are or may have been owners of any part of the site, the evidence shows that they were – as would be expected – made aware of the application and that they took the opportunity to make comments on the application so that they cannot, in contradistinction to the position of the objectors in the Pridmore case, claim that they have personally been prejudiced by any failure to comply with the notification or certification requirements.

83. Finally, I am satisfied that there has been a delay in bringing this application. I do not regard that as a decisive factor in itself; I accept that it is not a significant period of delay and that there is no direct evidence that this period of delay has been specifically prejudicial to the applicant. But nonetheless, it seems to me that I am entitled to and should have regard to the fact that this matter has now been going on for some time. It could have been brought on for determination sooner if the application had been made sooner, and the consequences of delay are undoubtedly prejudicial not only to Mr Hill but to the wider local community.

84. A further point that I should make is that it does not appear from the evidence which I have seen that any issues in relation to the strips of land in issue are, or would have been, of themselves of any direct or significant relevance to the planning determination which had to be made in this case. But primarily, as I say, on the basis of the fact that the claimant is not in the position of the owner of the disputed strip of land, it seems to me that this is a case where I should not exercise a discretion to quash the planning permission and instead I should exercise my discretion in favour of upholding the planning permission despite such breaches as did occur. It follows that for all those reasons the challenge by Mr O'Brien to the decision to grant planning permission must fail and I decide accordingly.

[SUBMISSIONS ON COSTS]

85. HIS HONOUR JUDGE DAVIES: I must now deal with costs. The defendant, being the successful party, asks for its costs. It has put in a costs schedule which was complete up to the end of the hearing yesterday and which adjusted to take into account today's costs together with the costs of the acknowledgement of service, awarded by His Honour Judge Gilbart QC, amounts to a total of £37,147.63.

86. The defendant invites me to note the following matters. Firstly, that the costs are high because there has been a constant stream of correspondence between the claimant and the defendant with requests for further information and the like and with further issues and grounds having been identified together with those numerous grounds already identified in the original claim, all of which had to be taken seriously and were taken seriously, with full investigation, advice from counsel including specialist land counsel as well as planning counsel, and that if anything, certain costs have been excluded. The defendant invites me to take a pragmatic approach; they do not want to go down the road of detailed assessment and they invite me to make an award on a global basis on the basis of what is reasonable, just and proportionate.

87. Mr O'Brien submits that if the Council had taken its responsibilities seriously at the time when these issues arose, then questions of ownership could have been resolved at that stage and these proceedings avoided; that further facts emerged in the course of the judicial review proceedings and indeed that concessions were made by the defendant in the course of the proceedings; that they had made errors, albeit that in the end they successfully persuaded me to exercise my discretion against quashing the planning permission. Mr O'Brien reminded me that he himself has had to spend a lot of time getting up to speed and becoming sufficiently expert to present his own case in this regard, and that he did not reasonably expect that the costs would be anything like the amount involved. He reasonably envisaged, he says, a modest liability for costs at the permission stage, but that once a substantial bill came in and there was a significant assessment of those costs by His Honour Judge Gilbart QC, effectively he was locked into the proceedings. He accepts that the court should summarily assess today rather than going for a detailed assessment but he does say that although he has no experience in costs matters he does feel a lot of the work would have been done anyway, in the sense that the Council would have been responding to genuine requests for information from someone who lives in their area.

88. The position, as it seems to me is this: the claimant brought these proceedings, making a number of challenges on a number of grounds. He inevitably took a risk in relation to costs, because he must have known that by bringing these proceedings, the defendant would incur costs and that he would have to pay them if he lost. He decided to continue with the claim even after Judge Gilbart had ruled against him and he took further points, although he did drop others. Although he says he was locked in at that stage because of costs, I do not accept that; it would always have been open to him to have elected not to pursue the case further and to have sought in effect a further opportunity to raise arguments in relation to the assessment of the costs of the permission stage.

89. But I do accept on his behalf that he has, through his involvement in these proceedings, been able to establish that the applicant for planning permission, through his agents, did not comply in a number of material respects with the requirements of the notification and certification obligations, and he has been able to establish that those are matters which he is entitled to raise as against the defendant, and that the defendant has only succeeded today because it has been able to persuade me, by reference to all of the relevant circumstances, that I should exercise my discretion against quashing the planning permission.

90. I take those points into account and I accept that this is not a case where the defendant has achieved unconditional success on all issues. Having regard to the time and effort expended by Mr O'Brien on issues where he succeeded, the right course, it seems to me, in principle is to make an order that the Council should recover a proportion of its costs, and I take the view that the right proportion in the circumstances would be 50% of its costs.

91. I also have to then separately assess what a proportionate amount would be in relation to costs and to consider the detail of the claim made. Whilst I accept everything that the Council has said in relation to why the costs are as high as they are, and I acquit the defendant of any suggestion that it has in any way sought to build up costs or to use costs in any oppressive way, I have to bear in mind that this is a relatively modest dispute about a relatively modest local development, where the issues taken by Mr O'Brien, although multifarious, have not, it seems to me, been at a very high level of complexity. It seems to me that the totality of the costs expended by the defendant may be considered objectively to be disproportionate by reference to the issues involved in the case and the significance of the case in relative terms. It also seems to me that Mr O'Brien is right to say that some at least of the costs that will have been incurred will have been incurred in dealing with legitimate requests for information not necessarily connected with the litigation.

92. Taking a global approach, it seems to me that an appropriate and proportionate amount incurred in relation to costs in terms of the whole litigation would be £20,000. Since I have already decided that Mr O'Brien should pay 50% of those costs the effect of that assessment is that he should pay £10,000.

93. I will order that the claimant should pay these costs by a date 28 days from today but I will also direct that you should otherwise make an application to the court within that period for a payment timetable. I will direct that any application for payment by instalments should be made to a District Judge at Wigan County Court within 28 days from today.

THE CLAIMANT: Your Honour, in respect of the possible development in terms of ownership of the ditch, could I have leave to appeal?

HIS HONOUR JUDGE DAVIES: I am satisfied that I should not grant you permission to appeal. You can renew that application to the Court of Appeal.