Irving v Mid-Sussex District Council

In this judicial review Mrs Felicity Irving ("the claimant") challenges decisions of the Mid-Sussex District Council ("the council") to grant planning permission to itself dated 18 December 2013 relating to the erection of a five-bedroom detached house and double garage on land to the west of Newbury at Courtmead Road, Cuckfield, West Sussex. The first ground of challenge is to that decision. Mr Justice Jay refused the application on the papers as well out of time. Before me, there is a renewed application to apply for judicial review.

Also before me is an application by the claimant to apply for judicial review in respect of the council's failure of 18 December 2013 to reconsider that decision in the light of a decision of this court in R (Application of Irving) v Mid-Sussex District Council [2016] EWHC 1529 Admin. There, Mr Justice Gilbart quashed a materially identical grant of planning permission on the grounds that it was unlawful. That is ground 2, and Mr Justice Jay granted permission in respect of it.

Mr Justice Jay also gave permission in relation to two further challenges. The first was a challenge to a decision in late September/early October 2016 to market the site and subsequently to implement the planning permission of 18 December 2013. The second challenge was to a decision dated 3 November 2016 to refuse to provide to her information about that matter. Following further disclosure the claimant has now withdrawn those challenges. The council has explained that at this point there is no decision to implement the planning permission of 18 December 2013.

The background is this. In 1974, when the council was formed, land to the west of Cuckfield Church, including the land for which planning permission has been granted ("the site") came into the council's ownership. In 1987 most of that land was gifted to the newly-created Parish Council for use as allotments and as an extension to an existing graveyard. However the site was retained by the council. Most of the site falls within the conservation area.

In February 2010 a council working group considered the possible disposal of the site to generate a capital receipt. The group asked officers to submit an outline planning application for one detached dwelling with a view to selling the site. In October 2013 the council, as landowner, submitted an outline application for planning permission to itself as local planning authority. Steps were taken to rule out any conflict of interest.

There was a report to the council's cabinet members proposing an agreement for disposal of the site as a residential building plot for one detached property. The report observed the purpose of the disposal was to maximise capital receipts in a harsh financial climate so as to support the council's reserves. Under the heading "Planning Context" the report stated that the proposal was formulated against a background of central government requesting councils to maximise the value of their assets.

At a cabinet meeting on 21 October 2013 the proposal was supported. The leader of the council and the cabinet member for finance and service delivery emphasised the need to ensure that resources were available to maintain council services across the district. The cabinet took the in-principle decision to dispose of the site for full open market value as a residential building plot for one detached property. That decision was conditional on further reports on the appropriation of the site and a final decision as to its disposal.

On 24 October the council published an advertisement indicating its intention to appropriate the site. The council planning committee met on 12 December 2013. There was an officer's report recommending approval of the planning application for the site. The report contained a passage about the impact on the views into and out of the village:

Members resolved to grant planning permission and permission was formally issued on 18 December 2013. It was conditional on the council approving reserved matters within three years. As a result of regulation 9 of the Town & Country Planning General Regulations 1992, that permission did not run with the site.

A short time later, on 23 December 2013, the cabinet decided to appropriate the site from statutory allotment land to housing land and then from housing land to planning purposes. A draft contract of sale was prepared and a local estate agent, Marcus Grimes, was instructed to conduct a marketing exercise. From that date the site was padlocked and has remained locked ever since. On 30 December 2013 the council gave notice of its intention to sell the land.

In early January 2014 the claimant's solicitor sent a pre-action letter to the council alleging that the decision was unlawful. The council responded to the allegation and no judicial review claim was issued.

Meanwhile, in late December, the site had been registered as an asset of community value. That meant that under the Localism Act 2011 the council could not sell the site for six weeks to enable local community groups to request to be treated as a bidder. Under the Localism Act no sale can then take place for six months to enable to community interest groups to assemble the resources. The Parish Council indicated its desire to bid for the site. The following month the council entered into a conditional contract of sale with one of the bidders. Subsequently, a conditional contract was entered into with SDP Construction & Builders. At the end of June 2014 The Play Meadow Users Association bid for the site but the council rejected that bid on the grounds that it fell well short of the best price that could reasonably be obtained.

In September 2014 SDP applied for planning permission. There was an officer's report recommending approval. On 13 November 2014 the planning committee agreed with the recommendation and planning permission was issued on 15 December 2014 ("the second planning permission" of the site). The claimant issued a claim for judicial review in January 2015 challenging that second planning permission. In April 2015 the council consented to quashing the permission on the basis that it was an error in the advice given to members as regards the treatment of open space.

SDP then made a materially identical planning application. The officer's report recommending approval contained the same passage about the impact on views contained in the December 2013 report, which I quoted earlier. The planning committee resolved to grant planning permission and planning permission was issued on 1 May 2015 ("the third planning permission" for the site).

In June 2015 the council, as landowner, made an application for approval of reserved matters pursuant to the 18 December 2013 permission and that was granted in October. The officer's report recommending approval contained the same passage on views as in previous reports.

The claimant issued a claim for judicial review of the third planning permission in June 2015. That led to the judgment to which I have referred of Mr Justice Gilbart. He found that the advice provided to members with regard to the impact of the proposed development on the conservation area was flawed and that rendered the grant of planning permission unlawful. That advice had been that, although there would be a harmful effect on the character and appearance of the conservation area through development, members should look at the harm in the context of the conservation area as a whole.

Mr Justice Gilbart held that if there was harm to the character and appearance of one part of the conservation area the fact that the whole would still have a special character did not overcome the fact of that harm. The question of the extent of the harm was relevant to a consideration of its effects. But it was not right that harm to one part of the conservation area did not amount to harm for the purposes of considering the duty under Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.

In late September/early October 2016 Marcus Grimes, the estate agent, commenced marketing the land on behalf of the council. Its particulars made reference to the property being built "early next year" and further stated that the buyer would be expected to exchange formal contracts by the end of 2016.

In November the claimant sent a pre-action letter to the council. She indicated an intention to challenge three decisions: first, the grant of planning permission on 18 December 2013; second, the decision to implement that permission dated as at late September/early October 2016; and, thirdly, the refusal to provided information about that decision. The council responded. It refused to consent to the quashing of the planning permission of 18 December 2013 and said it was out of time and there would be substantial prejudice to it and to good administration. It also denied that any decision had been taken to implement that planning permission. Following further pre-action correspondence, the claim was issued on 23 September 2016.

The matter was then considered on the papers by Mr Justice Jay, as I have described. In the light of his grant of permission on ground 2, the council's legal and planning officers invited the planning committee to consider whether it should consent to the quashing of the planning decision of 18 December 2013 or should revoke that permission.

There was a report to the planning committee of 14 March 2017. It advised members that the officer's report for the meeting on 12 December 2013, leading to the planning permission being challenged, suffered from the defect in relation to the development of the conservation area as did the officer's report for the third planning permission, which had led to Mr Justice Gilbart's decision. Members were also advised that, if the decision had been challenged within time, the decision of 18 December 2013 might also have been quashed. The officer's report continued that given that three years had passed since the grant of that permission, the question of whether to consent to judgment or to revoke the permission was not straightforward.

Members were then advised as to the impact of the development on the conservation area and no challenge has been made to the lawfulness of that advice. They were then asked to consider, on the basis of that revised advice, whether the planning harm of allowing the permission to stand outweighed the prejudice to good administration and tot he council as landowner if the permission were to be quashed.

That lengthy report went before the committee on 23 March 2017 and the committee decided not to consent to judgment or to revoke the planning permission of 18 December 2013. The decision was to the effect that although the earlier report was in error the committee would have made the same decision if they had been correctly advised. There was no planning harm in allowing the permission to stand.

The council accepts that that planning permission of 18 December 2013 was granted on the basis of advice which was found to be unlawful by Mr Justice Gilbart in R (Application of Irving) v Mid-Sussex District Council. The council also accepts that the planning permission would or may have been found to be granted on an unlawful basis if it had been challenged within time. However, it contends that it is far too late for the claimant to bring judicial review three years after the decision. It refers to the prejudice which would be caused now from a decision to quash the permission and to the prejudice to good administration. It points to the expenditure of time and money it has incurred. The council also refers to the March 2017 decision on the basis of the updated report that the planning permission of 18 December 2013 caused no planning harm and to the decision of the planning committee not to revoke or to consent to the quashing of the first permission

For the claimant, Mr Sharland began his forceful submissions with what he submitted was a fundamental point, that the council should not be permitted to gain from its own unlawful actions, thus the grant of planning permission should be quashed. He added that the quashing of the planning permission would not deprive the council of the opportunity of establishing that a grant of planning permission is justified. In other words, it could apply again. He underlined the importance of judicial review as the guardian of the public interest, and that there is a clear public interest in ensuring that breaches of the law by public bodies are identified and corrected. Coupled with that there was a submission that public authorities are expected to act in a high-principle way; are not generally entitled to benefit financially from their mistakes of law. In that regard, he cited a passage from R v (Tower Hamlets London Borough Council) ex p Chetnik Developments Ltd [1988] 1 AC 858 at 876H-877A, per Lord Bridge.

Mr Sharland then turned to the case for extending time. The claimant accepted that the application for judicial review was out of time. In the circumstances, however, he contended that there was a good reason to extend time. He took me to the claimant's witness statement: she had relied upon the council's statement made at the cabinet meeting on 21 October 2013 that the council's intention was to develop the land itself. That intention was reinforced by the decision of December 2013 to appropriate the site for planning purposes and by the subsequent advertising for bids and the entering of the conditional contract with SDP.

Mr Sharland submitted that it was not until the advertisement by Marcus Grimes in late September/early October last year that the claimant knew that the council was intending to develop the site itself. In those circumstances, he contended, it was reasonable for the claimant to wait until a developer obtained planning permission for a development before undertaking a legal challenge to the grant of planning permission.

Mr Sharland also contended that the courts should readily extend time in the circumstances of this case given the strength of the claimant’s case. That was unanswerable in the light of Mr Justice Gilbart's decision in the earlier judicial review and the importance of vindicating the rule of law. As regards the present case he returned to the point with which he began his submissions that the council was attempting to rely on its own wrongful decision to reap a significant financial gain. He continued that here there was no prejudice to third parties. As to any financial prejudice to the council he took me to the offer which the claimant's solicitor had made to the council to reimburse the council's costs which it had earlier outlined in witness statements. Mr Sharland submitted that the prejudice to good administration which the council alleged was really an assertion that it should benefit financially from its own wrong, and the court should not countenance it.

Generally speaking, the court has a power to grant an extension of time under CPR 3.1 (2)(a). That will be exercised where there are very good reasons for doing so. In planning matters CPR 54.5 requires that challenges be made within six weeks. The policy behind that short period, introduced in 2013, is to reduce delays and provide greater certainty in public decision making on planning matters. In the planning context, promptness, when seeking to challenge a planning permission, has a particular force and runs as a thread through the case law: R v (Exeter City Council) ex p J L Thomas & Co Ltd [1991] 1 QB 471, at 484, per Lord Justice Simon Brown; R v (Newbury District Council) ex p Chieveley Parish Council [1999] PLCR 51, per Lord Justice Pill; Finn Kelcey v Milton Keynes Council [2008] EWCA Civ 1067, per Lord Justice Keene; R (on the application of Gerber) v Wiltshire Country Council [2016] EWCA Civ 84.

In the course of his submissions Mr Sharland referred to R (on the application of Gardner) v Harrogate Borough Council [2008] EWHC 2942 Admin. That was a case where a planning decision had been made on 22 November 2005 and judicial review had not been launched until some time in 2007. (Unfortunately the exact date in 2007 is unknown.) To my mind, however, the delay permitted in that case is special on its facts. First, it was attributable to an ombudsman's report on the matter not being available to the claimant until mid-December 2006. Secondly, the ombudsman's report uncovered a real possibility of bias in the decision to grant outline planning permission to the application. That was in favour of a conservative councillor, on the casting vote of a fellow conservative councillor, the chairman of the planning committee, who also had social ties with the applicant.

In the course of his judgment Mr Justice Sullivan stated that where there was procedural impropriety such as apparent bias, to maintain the integrity of the planning system the court ought to quash the offending planning permission. At paragraph 40, however, he noted that there might be sound reasons for not pursuing such a course, for example undue delay or substantial prejudice.

Mr Sharland also referred to R v Bassetlaw District Council ex p Oxley [1998] PLCR 283. There again there had been delay. The decision had been taken in October 1994 and the claim was issued on 21 June 1996. But again there was a good explanation for the delay. It had not been until mid-March 1996 that the council received the report of the independent inquiry that certain councillors had not disclosed an interest and that the planning system had been manipulated. Again, to my mind, that was an exceptional case, as Lord Justice Hobhouse noted in the course of his judgment. The delay was not undue, there had been unlawful decisions of the council to grant planning permission, and there was no prejudice in the delay to those who should never have received the permission in the first place.

As I have explained there is a difference between these authorities and the unlawfulness involved in the present case. Mr Sharland sought to distinguish the more serious substantive unlawfulness in this case from what he submitted was the less serious procedural impropriety in the Gardner and Oxley cases. To my mind that is not an accurate analysis. They involved serious wrongdoing as compared with the circumstances of the current case. Here, the unlawfulness related to a mistake in the advice given as to planning law and policy, which came to light with Mr Justice Gilbart's decision in the Mid-Sussex decision. To my mind, although the unlawfulness here is patent, it is not of the same character as in Gardner and Oxley. Moreover, the circumstances of this case include the recent reconsideration of matters in March 2017.

In my judgment the council's statement of 23 October 2013 that it would sell the site as a building plot did not provide good reason for the claimant to delay any application for judicial review. She needed to challenge that permission if she considered that it had been granted unlawfully. That statement did not constitute a promise, still less did it generate a legitimate expectation on the claimant's part that the council would never change its mind and decide to develop the site itself. There was the council's application for the approval of reserved matters on 9 October 2015, and there was no confirmation by the council one way or the other that it did not intend to develop the land. In any event, there is no good reason why the claimant did not challenge the council's decision regarding the planning permission decision of 18 December 2013, either when the council decided to grant the application on reserved matters approval in October 2015, or on the occasion of the consideration of Mr Justice Gilbart's decision regarding the third planning permission.

I also reject the submissions which Mr Sharland made in relation to good administration, prejudice to the council and the rule of law. As I said in R (Application of Mulvenna) v Secretary of State for Communities and Local Government [2015] EWHC 3494 Admin, detriment to good administration is necessarily empty rhetoric. The second witness statement of Mr Stewart explains the financial benefit to the council of the sale of the site. It is not simply a matter of the council being compensated for its direct financial cost. There is an obvious need for the courts to uphold the rule of law but to my mind that phrase always needs to be analysed in detail if it is not to become empty rhetoric. In this case I can well accept the submission by Mr Warren QC, for the council, that the rule of law includes the application of time limits and rules of court.

Like Mr Justice Jay, I have concluded that this application is made far too late and that the time period should not be extended.

Here, the claimant contends that the council's failure to exercise its discretion and to apply to quash its unlawful decision of 18 December 2013 was itself unlawful. Following Mr Justice Gilbart's decision, Mr Sharland contended, there was no question but that it was unlawful. There was no prejudice to third parties and it would be irrational, in his submission, to conclude that it was not appropriate to apply either to have the permission quashed or to have it revoked.

There is an undoubted power of the council to apply on its own motion to have a grant of planning permission quashed by way of judicial review, and there is also the power to revoke planning permission under Section 97 of the Town & Country Planning Act 1990. Which avenue is pursued has different financial consequences in that if a planning permission is revoked the beneficiary is entitled to compensation. That issue is not relevant in the current circumstances, where it is the council itself which is the beneficiary of the grant of planning permission.

There are decisions where local authorities have applied to have decisions quashed on discovering that an earlier decision was unlawful. Gardner and Oxley are examples. Mr Sharland also referred to R (Application of Chief Executive of the IPCC) v IPCC [2016] EWHC 2993 Admin, where the IPCC had applied to have one of its earlier reports quashed where the wrong test and an inaccurate statement of facts had been involved. However, that decision is miles away from the unlawfulness in this case. Then there were issues which touched on Article 2 of the European Convention on Human Rights given the death of a person who died after being tasered, punched and restrained by police officers.

Similarly, another case cited by Mr Sharland - R v (Port Talbot Borough Council) ex p Jones [1988] 2 All ER 207 - is far removed in the seriousness of the unlawfulness involved, compared with the circumstances of this case. There the chairman of the housing committee had effectively pressured a council officer to allocate a council house to a councillor so as to put her in a better position to fight an election. It was a larger house than she would ordinarily have been granted and she thereby jumped the queue. Nolan J granted the leader of the council judicial review and the decision allocating the house was quashed, despite delay.

It is trite law that a public body, with discretion, must give proper consideration to the question of whether that discretion should be exercised. However, as in this case there is no obligation on a council to apply to have a planning permission quashed. It is a discretion, and a range of factors need to be considered by the authority such as the delay involved, the reasons for delay, the seriousness of the wrongdoing, the prejudice to third parties, the impact on good administration and so on. The court's role in the context of the exercise of discretion is to ask itself whether the authority has acted in a Wednesbury unreasonable way. That imposes a very high threshold.

In my view, however, all these matters are academic in this case because, as I described earlier, the planning committee reconsidered in March this year its grant of planning permission of 18 December 2013, and in all the circumstances decided not to consent to judgment in relation to the claimant's judicial review or to revoke the planning permission it had previously granted. As I have also said, the officer's report in March 2017 was lengthy and careful. To my mind the submission by Mr Sharland that the matter was dealt with in a perfunctory manner by the committee, or even worse, goes nowhere. That report contained the history, the correct planning advice, and also identified the prejudice to the council and the different options open to members. In my view his is not a case of the March 2017 decision being infected somehow by irrelevant considerations: cf. R (on the application of Carlton-Conway) v Harrow LBC [2002] EWCA Civ 927; [2002] JPL 1216, [27].

In the result, I dismiss the claim.

MR WARREN: All that remains to refer to is the issue of costs. My friend and I have briefly discussed it. There is pursuant to Mr Justice Jay's order a PCO in place. However as adverted to in argument there may well be some detailed matters concerning what were the middle two grounds not pursued before your Lordship. The parties tentatively suggest that those matters of costs may be dealt with in writing over the course of the next twenty-four or forty-eight hours rather than ventilated now at greater length, I suspect, than would otherwise be the case.

SIR ROSS CRANSTON: They can be dealt with shortly in writing. Mr Sharland, you are happy with that?

MR SHARLAND: I am. We did not see a claim for costs until about half-an-hour ago. I obviously need to take instructions on that - so, yes.

SIR ROSS CRANSTON: Short submissions in the next week.

MR SHARLAND: I am grateful. There is an application for permission to appeal. Given your detailed and lengthy judgment, I am going to keep it short. I am going to say this matter does raise matters of profound public importance. It appears, as far as I am aware, to be the first case where a public authority has been permitted financially to gain from its admittedly unlawful action. Bearing in mind that and the broader circumstances, we say could we have permission to appeal?

SIR ROSS CRANSTON: Mr Sharland, thank you never much. I know it is always difficult to make that sort of application but I think you will have to go elsewhere.

MR SHARLAND: I somewhat anticipated that, my Lord. As I understand your decision, you have dismissed the application. If we seek permission from the Court of Appeal the time limit depends on how you dismiss the application. In relation to ground 1, if you refuse permission it is seven days; if you granted permission - - - - -

SIR ROSS CRANSTON: I have refused permission. This is a renewed application; I should have made that clear.

MR SHARLAND: I was not entirely clear, but I thought that may be so. In relation to ground 2 it is twenty-one days. You can vary that. Could I ask for twenty-one days from the date we get the transcript of the judgment? It is that having two applications for permission does not make administrative sense. I do not think the Court of Appeal will be too happy.

SIR ROSS CRANSTON: Mr Warren, you have your judgment now rather than, say, in two months' time.

MR WARREN: Yes. I appreciate that on behalf of my clients. The only practical issue which arises relates to - - - - -

SIR ROSS CRANSTON: How quickly you will get the judgment?

MR WARREN: - - - - - the transcript and its relationship with the October 2017 expiry of the consent that we have been arguing about. It would be a supreme irony of this application were the extended time to jeopardise that. (Pause)

SIR ROSS CRANSTON: It will be produced by next Wednesday.

MR SHARLAND: I am grateful. In the light of that can we have twenty-one days from next Wednesday?

SIR ROSS CRANSTON: Yes. Thank you very much.