Lucchetti, R (on the application of) v South Norfolk District Council

MR JUSTICE COLLINS: This is a claim for judicial review. It seeks to quash the decision of the South Norfolk District Council to grant planning permission subject to conditions for the erection of a building on farm land to store agricultural machinery. The decision in question was made on 6 December 2010. Part of the reason for the delay in dealing with the substantive claim is that permission was originally refused on the papers by Mr Justice Lindblom but was granted on a renewed application by Mr Justice Stadlen. It now comes for decision before me.

The claimants occupy a Grade II* listed building called High House Farm in Wreningham, Norfolk. Permission to erect the building in question was sought by the interested party in the case, HG Minns & Son, who own a substantial farm which effectively adjoins the claimants' house.

The application was in fact made pursuant to the General Permitted Development Order 1995 (GPDO). The building in question is an agricultural building, and the Order provides that such a building is to be permitted in farm land subject to certain conditions which are set out in the Order itself. The relevant provisions of the Order are contained in Part 6 under Class A.

The provisions with which this case is directly concerned are as follows. The permitted development under [Class] A is -

The conditions which are set out in A.2 - again, so far as material - are as follows:

That is all I need to read of the relevant provisions of the Order. It is clear from that that the permitted development is subject only to the conditions set out in the Order itself.

What happened here was that the permission granted was in the form of a general permission for the development in question subject to conditions. The decision under attack was in these terms:

That reference is to an extent of course inconsistent with the body of the document since it purports to be a general planning permission subject to conditions. Whereas what it ought to be, in accordance with the GPDO, is an indication of the conditions in accordance with the terms of that Order. Those conditions depend essentially upon the details which have been approved by the Local Planning Authority.

It is the case on behalf of the authority that in effect the conditions which are contained within the purported grant of planning permission reflect the details which have been approved by the defendant and which therefore are to be treated as the conditions under which the agreement to allow the building to be erected operates. Thus essentially it is said that while the form of the permission may be defective the contents of it or the effect of it are within what is required. The note makes clear that this should be treated as a permission flowing from the GPDO.

The report from the committee which led to the permission in question was on the basis that consideration should be given to the relevant plans and that it was to be treated, albeit technically under the GPDO, as if it were a consideration of a grant of planning permission. The recommendation was to approve conditionally. The conditions are briefly set out, not in any detail: (1) full planning permission time limit; (2) in accordance with submitted drawings; (3) external material to be agreed; (4) no external lighting without prior approval.

Notice was given that there were two letters of objection received from local residents which raised visual impact on the character of the Grade II* listed building and substantially impacted on the experience of living in the property, that more suitable sites were available within the interested party's holding. This was said:

The assessments referred to two policies which permitted the principle of development in the open countryside provided that the proposal was for agricultural or forestry purposes, having regard to the siting, design and scale of proposed development and that the road access did not cause harm to the safe and free flow of traffic. In reality, subject perhaps to the road point, the matters there referred to are reflected in the conditions which are required under the GPDO although of course it is those that should have been referred to rather than Policies EMP 5 and EMP 8.

Questions of traffic were also raised initially because the IMP Policies referred to concern traffic, albeit traffic or effect on traffic is not a matter which is directly covered by the GPDO; although it may be that questions of suitability of the site could be affected by traffic considerations. It was noted in the report that the application had been submitted as a prior notification under Part 6 of the GPDO and the point was made that the council had (there can be no criticism whatever of this) required prior approval before any development could go ahead. There is provision, to which I have not specifically referred, in the GPDO that can enable in certain circumstances a development to go ahead without prior approval. That is a matter for the Local Planning Authority to decide. In this case the defendant did decide and properly decided that prior approval would be needed. Certainly the claimants have no criticism of that requirement.

Under the heading "Location/Siting" the question of the appropriateness of this particular site within the farm was considered. Advice had been obtained from English Heritage and from the conservation officer which impinges not only on the question of siting but also on the effect on the listed buildings. It was indicated in the officer's report that consideration had been given to other available sites but the applicant had said - and the officer agreed - that other sites were not as good as this one. And one of the reasons for choosing it was that it was bounded on three sides by trees. It was vacant and under-used and was in the circumstances unsuitable for farming purposes. In paragraph 4.8 the officer said:

So far as the screening is concerned, the interested party had written a letter to the council in November 2010 seeking to reply to the objections and comments which had been forwarded to it. In respect of screening, this is said:

The report went on to consider the impact on listed buildings and made the point that neither English Heritage nor the council's conservation officer took the view that the impact would be such as suffice to say that this development should not be permitted. So far as residential amenities, essentially much the same was said although in paragraph 4.13 the question of lights was raised in these words:

At paragraph 4.14, this is said:

Once the decision came to the attention of the claimants, through their solicitors they raised the point that this was not in a proper form and thus was not lawful because there was no power to grant permission with conditions. The result would be that the conditions were unenforceable. That was set out in a pre-action protocol letter of 28 January 2011. What was sought was confirmation that the proposed defendant (that is the council) would revoke the planning permission issued on 6 December. Alternatively, it goes on:

The answer to that came on 10 February 2011. It was accepted in that letter that the council had no power to impose a condition on the approval of details in connection with the deemed grant of planning permission of the building by the GPDO. It went on:

Unfortunately, and no doubt due to an oversight, that was not put into effect. The claimants received no advance copy of the proposal. Essentially, the letter took the view that there was no substance in the claim. It also drew attention to a tree preservation order which had been made in order to prevent any further loss of trees which had formed part of the screening.

So far as the Section 106 agreement is concerned, that was not served on the claimants until it was attached to the acknowledgement of service following the lodging of this claim on 5 March 2011. In the recitals to the Section 106 agreement, so far as material, various observations relating to the issue of screening are set out because the Section 106 agreement required the interested party to plant, not before 1 November 2011 or later than 31 January 2012, trees on the land and maintain at all times thereafter in accordance with the landscaping and planting scheme annexed to 302. I do not think it is necessary for me to go into the details of that. Suffice it to say that the defendant's case is that it has done all that it could reasonably be expected to do to ensure not only that there is no further removal of trees and screening by means of trees but also that the replanting ensures - initially once a year - that the trees planted have sufficiently grown, namely the replacement of what was wrongly removed by the over-zealous contractors.

But in the recitals at (5) this is said:

The recitals go on to refer to English Heritage's reliance upon the screening.

Mr Edwards makes the point that nothing was done by the council in advance of the grant of approval to ensure, as best they could, that the screening remained and was not removed any more than was strictly necessary for the creation of the access. It is accepted that more was removed than ought to have been in all the circumstances. There is nothing in the GPDO itself which enables conditions to be imposed relating to landscaping or the retention of screening, as in this case. However it is a material factor to be taken into account in deciding upon siting. But, in principle, it is not necessarily wrong for a council to accept the word of a proposed developer albeit there may be circumstances in which it would be desirable and possible to ensure that there was a back-up. Clearly, a tree preservation order could have been made in any event. That, no doubt, should have had the effect of avoiding some of the removal that took place. It is not in any way dependent on the existence of the proposed development.

However the Section 106 agreement could be said to fall into a slightly different category. However in principle it might be possible for a local planning authority - where there were real concerns that without retention of screening a particular site would not be a suitable site for a development under the GPDO - to insist that such an agreement was entered into on the basis that without it the site would not be regarded as one which was suitable. That was not adopted by this council, no doubt because they did not regard it as necessary. But whether or not if they had approached the matter on the correct basis, namely within the terms of the GPDO, or as they did as planning permission requiring conditions, clearly the absence of a Section 106 agreement would in the result have made no difference to the decision that was in fact reached.

It is unfortunate that there has been a removal of the screening to a greater extent than was indicated as required by the interested party. Clearly the council has done, in my view, what it can to remedy the matter.

The claimants, through a witness Mr Ivory (of their solicitors), make the point that the recitals indicate, as I have already set out, the importance of the existence of the screening and assert that what is in the Section 106 agreement is in fact less than is really required to safeguard the position of the claimants. This point is made in paragraph 14 of the statement:

I suppose, on the basis that nothing can be said to be impossible, it might be that a different decision could have been reached but, frankly, I very much doubt it because the approach - namely that reliance was placed upon the bona fides of the interested party's approach - was an approach - which, in the circumstances, cannot be said to have been unreasonable. In all those circumstances I do not think that the importance which was placed in the Section 106 agreement recitals on the existence of the screening would have led to any different decision. In any event, of course, the building has now been erected.

When asked what the claimants were really after in this case the answer was - it had to be - that the building was demolished and re-sited somewhere else. That would involve substantial cost and should only be required, in my view, if it can truly be said that it was necessary as a result of the unlawfulness of the decision in fact reached.

Although it has been accepted - and properly accepted - that the decision in the form it was made was not appropriate, the planning officer who approached the matter in the way she did can, to an extent, be forgiven because the guidance issued by the Department to local planning authorities when dealing with the GPDO contains this in paragraph E22 under the heading "Scope of Controls":

Then there is this sentence:

Certainly the approach that is said to be much the same as is required when considering approval of reserved matters is not inappropriate. There are differences and they have been specifically referred to in a decision of the Court of Appeal Murrell v Secretary of State for Communities and Local Government & Another [2010] EWCA Civ 1367. The judgment of the Court given by Lord Justice Richards (in paragraph 46) made the point that paragraph E22 drew the analogy with outline planning permission but that there were differences - one obvious being that in the case of an outline planning permission there existed an accrued permission, whereas in a Class A prior approval case no permission accrued until the occurrence of one of the events in paragraph A2 (2) (iii).

If one looks at the conditions which were in fact imposed in this case, in my view, they do in reality accord with what would have been approved by the council had the matter been approached in the correct fashion. The first condition was that the development should be constructed in accordance with the submitted drawings. That would follow from the approval of the drawings as set out and on the site plan as set out in accordance with A2 (2) (v) (aa). So had this been in proper form that condition would in fact have been unnecessary because it would have been part and parcel of the approval.

The second condition deals with the colours and materials in the construction of the external surfaces and requires that before any of the external cladding is installed colours have to be approved. In fact the colour has been approved because it has been put forward as olive green. Mr Edwards submits that that is not sufficiently narrow because olive green covers a band. Whether that is so to an expert in colours, I do not know. I would have thought "olive green" was quite sufficiently clear to speak for itself. It is difficult to see that the authority could be criticised for requiring more in terms of approval than "olive green". Accordingly, the second condition is met by the approval of olive green in the plan put forward on behalf of the interested party.

The third condition deals with the erection of any external lighting subject to conditions. The reality is that the plans approved do not indicate any external lighting. In those circumstances it seems to me that that condition is also covered because if external lighting is to be required there will [be] a need for approval; (v) commences with the words "Development shall ..... except to the extent the local planning authority otherwise agree in writing" be carried out in accordance with the details approved. Since the details approved in this case do not include external lighting it seems to me that any desire to construct or erect such external lighting will be subject to the approval - in writing - of the council. Accordingly, although I appreciate that the officer's report indicated a concern that there might be a possibility of external lighting, that concern is in the circumstances not a reality for the reasons I have indicated.

Accordingly, as it seems to me, although this was approached in the wrong way, the reality is that what has been done takes the matter no further than would be the position had it been done in the proper way; that is to say that the decision of the committee based upon the advice given to it that this was a proper site and that there were details of the nature of the building, of its colour and the possibility of controlling any future desire to have external lighting, all those were matters which could properly have been considered when approving the relevant matters for the purpose of the GPDO. Accordingly, what has been done, in effect, does no more and no less than what would have been required under the GPDO.

I appreciate of course the disappointment of the claimants and the concerns that the screening has been removed to a greater extent than was considered necessary or indeed was considered likely to occur by the council. But that in itself, in my view, cannot result in a proper decision that as a result the building would have to be taken down and sited somewhere else. It is of course unfortunate, but I do not think that there was an error of law in the council in failing to take steps in advance to ensure that what was said was not going to happen would have built in means of ensuring it did not happen.

Accordingly, in my view, the relief sought, namely that the decision be quashed and a fresh decision be made is not one which I should accept because the resulting decision in all circumstances that I have set out does cover properly the matters which need to be covered by the GPDO. It is unnecessary and undesirable that there should be a need for the decision to be quashed and a further decision made. Indeed it would be, in my view, arguably perverse were the council now - in light of all that has happened - to take the view that the barn could no longer stay where it is and it would certainly not be expedient to take any enforcement action. It is not a proper approach of this court in judicial review cases to require something to be done which is not necessary in the interests of justice.

However having said that, it clearly is, in my view, necessary that what appears on the Planning Register should be accurate. Whilst no doubt it will have the same effect, there ought to be a substituted decision put on the register, the substituted decision being one which accords with the terms of the GPDO. I am told that that is a matter which can be done administratively; I do not doubt that is so, but, if necessary, although I think this judgment speaks for itself, I would be prepared to declare that it should be done if that is needed to get over any difficulty that the council may otherwise believe it has in substituting a decision under the terms of the GPDO rather than the local planning permission with conditions which would clearly not, as conditions, be enforceable. That could be important because anyone who has an interest in the land (it is possible that it may be sold in time to come) can tell from the Register what can and what cannot be done.

Subject to that, I must dismiss this claim.

Do you need anything more than that, Miss Parry?

MISS PARRY: No, I do not believe so. It is simply a matter of deleting conditions which we never had any power to make anyway.

MR JUSTICE COLLINS: Yes. And making it clear that the approval is within the terms of GPDO Part 6A.

MISS PARRY: It is said to me they will cross-reference this court's judgment to the approval to make that matter clear.

MR JUSTICE COLLINS: I understood that you accepted and those behind you accepted that it is desirable to match the judgment.

MISS PARRY: Yes, indeed. I do not see any reason why that cannot be done.

MR JUSTICE COLLINS: We have the matter of costs.

MR EDWARDS: The normal course of events as set out in the Rules is that the winning party wins but this is not a case where the winning party, in my submission, should win.

MR JUSTICE COLLINS: You know your general application.

MR EDWARDS: As your Lordship has observed this morning, this was not a case of a claimant launching proceedings prematurely or inadvisedly. As you pointed out rightly, the situation has been unfortunate. There was a clear error as you have accepted.

MR JUSTICE COLLINS: That is common ground.

MR EDWARDS: It is common ground. But to get that rectified it required my clients, first, through their solicitors to issue the pre-action protocol letter to which they get a reply which effectively said, yes, we can see that is right and we did not realise the screening would go, then to say we will prepare a draft Section 106 agreement which we will let you have in advance, we never hear anything more. We come up to the time for expiration of the judicial review time limit. We have a choice. Do you sit around waiting in the hope that this will happen or do you launch judicial review proceedings, which we did, I seem to recall, on 4 March?

Even though those proceedings were issued and served, nothing was heard from the council or from the interested party. The first we know that there has been a Section 106 agreement is when they serve the acknowledgement of service almost a month later saying it is not necessary, we have entered into this agreement. We were given no choice effectively because if we - - - - -

MR JUSTICE COLLINS: You may have a case up to then. Let us assume you do. What you should then have done is to say - on the basis of our findings - please make sure you amend the Register but we recognise subject to that we are entitled to our costs up to now because we had a real interest; you had got it wrong; there was a concern if it stayed as it is; the conditions were unenforceable and someone might make use of that. Beyond that point you are vulnerable.

MR EDWARDS: Beyond that point I would have said an easier solution would have been all along for the council to have said, yes, we accept we have the form wrong; either to have suggested the course of action you have chosen to embark on this afternoon or to say we will submit to judgment and re-make the decision. That could have been done very quickly on receipt of the pre-action protocol letter, in which case none of us would have been here even at the permission hearing or today if that had been done.

MR JUSTICE COLLINS: You accept you would have spent time arguing the position should be different.

MR EDWARDS: I know not. No. That is one course of action which I would say a responsible local planning authority should have done. It accepted very quickly that it was wrong.

MR JUSTICE COLLINS: That does not affect the question whether you should have your costs when you see the matter following the refusal by the single judge.

MR EDWARDS: The refusal by Mr Justice Lindblom was on the basis that he did not know that there had been this letter from the council saying we are going to send you a draft.

MR JUSTICE COLLINS: By the time you got the acknowledgement of service you got the 106. That did not give anything like the protection you needed. I do not know on what basis Mr Justice Stadlen granted permission. With great respect to those who came before me, the obvious answer to this was to amend the Register.

MR EDWARDS: Those who instruct me - my client in particular - are of the view that the 106 agreement, as can be seen from Mr Ivory, did not go far enough. We still say it does not go far enough. We are left unfortunately having to pay the price and live with the consequences of a decision which we say was wrong.

MR JUSTICE COLLINS: I follow that.

MR EDWARDS: In my submission the normal rules as to costs should not be applied, and certainly I do not see that the - - - - -

MR JUSTICE COLLINS: I have some sympathy.

MR EDWARDS: - - - - - local planning authority should have its costs when really it has been the author of its own misfortune twice in a significant way: first, in getting the decision wrong in the first place; and, secondly, in not providing a copy of that Section 106 agreement as promised.

In those circumstances I would say obviously the court has a complete discretion on this matter but those are my submissions on costs.

MISS PARRY: What are you asking for?

MR EDWARDS: Costs up to the granting of permission but that there should be no order for costs against the planning authority.

MR JUSTICE COLLINS: What you are asking me to do is to say they should pay you up to the refusal stage.

MR EDWARDS: Yes.

MR JUSTICE COLLINS: And that there should be no order thereafter.

MR EDWARDS: Indeed. I would say that would be the fairest way given the consequences my clients have to live with.

MISS PARRY: The point is the claimants have come to this court asking to quash a decision. You have been persuaded not to quash the decision. Therefore, we have won. Therefore, prima facie, I say we are entitled to our costs. That is the correct starting point.

MR JUSTICE COLLINS: That is the prima facie approach, I agree. Mr Edwards is bound to accept that.

MISS PARRY: In relation to this question whether the claimants were effectively obliged to issue proceedings - - - - -

MR JUSTICE COLLINS: No one is obliged to.

MISS PARRY: No. Whether they felt themselves obliged to, whether that should lead to some different order for costs, prima facie, is the position.

In relation to the imposition of conditions, your Lordship has accepted today that the only material problem caused by the way the council went about this was the need to amend the Planning Register. That issue has never been raised until today. The council would not (?) have been amenable to that at any stage. It cannot realistically be said that these proceedings need to be pursued.

MR JUSTICE COLLINS: Not for that purpose. I agree it should have been raised at an earlier stage. To be fair to them, they were not aware of the conditions of the 106 or even that there was a 106 agreement until you served the acknowledgement of service.

MISS PARRY: No. Well, logically that was because it was not entered into until 1 April.

MR JUSTICE COLLINS: You say you showed a draft.

MISS PARRY: Yes. I accept that there was no draft sent. My understanding - I will be corrected behind if not - is effectively as soon as it was drawn up, as soon as it was drafted, drawn up, it was sent with the acknowledgement of service. There was no intermediate stage.

MR JUSTICE COLLINS: I am not doubting that in the least. It was that that persuaded Mr Justice Lindblom to refuse permission, was it not?

MISS PARRY: It was, yes.

MR JUSTICE COLLINS: Whether or not he would have refused it absent such agreement I know not. He might not have done.

MISS PARRY: Your finding today was that in granting this permission without any method of ensuring screening remained in place, that was not an error of law - - - - -

MR JUSTICE COLLINS: That is an arguable point.

MISS PARRY: On the basis of that finding I would submit that the delay in providing the 106 does not alter the position as to costs. My prima facie position is that we should have all of our costs. My fall-back position in case you are not with me on that is that the claimants have their costs of issuing these proceedings but the defendant have its costs from after Mr Justice Lindblom's decision. That would be entirely fair. Once they had seen the 106 agreement they knew everything the court knows today. To make that clear, as far back as 15 June 2011 we raised whether we could agree to pay their costs up to that stage at that point to avoid the need for the matter to go any further because it was thought at that stage that costs was the issue. That was rejected in letters of correspondence by the claimants. I would say we acted entirely responsibly from that stage on.

MR JUSTICE COLLINS: Yes.

MR EDWARDS: I would raise another point which is we should not lose sight of the fact that the local planning authority did accept that they got the form of the decision wrong and they had no power to impose those conditions. Until your judgment a few minutes ago, what the effect of that decision notice was was uncertain. You have now clarified the position. That is something that if - - - - -

MR JUSTICE COLLINS: I am not sure you needed me.

MISS PARRY: It is a question of law.

MR EDWARDS: The question of law is you had a decision notice which had conditions on it which may or may not have been enforceable. Perhaps if a subsequent occupier had come into the premises and decided to put in lots of lighting and then the local planning authority said we will enforce against you because you are in breach of condition, then that would become a point of law and then the acid test of whether or not that condition was actually enforceable and valid would have been tested. It did require this court to clarify this position. We have a permission that is neither fish nor fowl. It is a bit of a mess frankly. Your Lordship has helped to clear up that mess. That has only been cleared up by coming in front of this court and arguing the matter in front of you. It is a poor situation, if I may say so, if my clients - who are now going to live with the consequences of a building they do not like but fair enough - have had to bring this matter to the attention of the court.

In doing so, it is that that motivated the council to go down the route of the Section 106 agreement and to go down the route of a tree preservation order when they were notified by my clients' solicitors "you did not have a power to do this and, by the way, vegetation has been removed". It seems to me doubly hard to say to my clients, "Yes, you must live with the consequences and the costs."

MR JUSTICE COLLINS: You know as well as I do that litigation does not always produce the result required.

MR EDWARDS: I accept that.

MR JUSTICE COLLINS: It is an expensive luxury sometimes.

MR EDWARDS: Absolutely correct. I would agree entirely. But the justice of this matter surely is that when there has been an acknowledged failure - not once but twice - it would be hard to penalise my clients on the question of costs.

MR JUSTICE COLLINS: The issue of costs in this case is not straightforward. It was accepted in the response to the pre-action protocol letter that the decision was not a proper one in the sense of it being a purported grant of permission subject to conditions. That was inappropriate and the conditions themselves were not enforceable. It is unfortunate that albeit the answer in the pre-action protocol letter contained a reference to the drafting of and negotiation to enter into a Section 106 agreement, the promise that the draft would be shown to the claimants was not complied with - no doubt due to an unfortunate oversight. The result was that time for issuing proceedings was running and it is clear that the claimants perfectly reasonably took the view that this would not provide a protection for the future and that there was clearly an indication that errors had been made by the council.

Accordingly, I am entirely satisfied that the issue of proceedings was reasonable.

There then came the acknowledgement of service which annexed the Section 106 agreement which by then had been entered into. At that stage in my view the claimants ought to have appreciated that their claim was not likely to succeed and the most they could expect and properly require was that the matter be amended and that the amendment be put upon the Register. It was not necessary to quash the decision. It may be that the council could have done it by saying that that agreement should no longer be regarded as being the one to be relied upon but a fresh agreement in the terms of the GPDO would be made and would be put on the Register. Unfortunately, that means that disposing of the claim was not suggested by either side. It certainly was not suggested by the claimants, but they persisted in the claim which I have decided was not one which should succeed on the basis on which it was pursued.

It seems to me the fair way of dealing with costs is to award the claimants their costs up to the receipt of the acknowledgement of service and that the defendant should have its costs thereafter. I am not in a position to go into the details of how that works out. That will be a matter for agreement or detailed assessment in due course if necessary.

That is the order I will make in the circumstances of this case.

MISS PARRY: Would you like me to draw up that order?

MR JUSTICE COLLINS: Yes, between you. It is not an entirely straightforward one. I would be grateful. I am sure the associate would be grateful. You can have the necessary e.mail to send to. I do not think it needs my approval unless there is any disagreement.

MR EDWARDS: We will try to come up with a form of words before we leave this afternoon.

MR JUSTICE COLLINS: That is up to you. Unless you have difficulties, I do not think I need to see it.