Newey, R (On the Application Of) v South Hams District Council

Mrs Emma Newey is the owner of Grants Cottage, 6 Brown’s Hill, Dartmouth. She operates the cottage as a holiday home. That cottage is adjacent to 14 Broadstone, Dartmouth. Mr and Mrs Stewart Killick own that property and obtained planning permission, on appeal, for the erection of one residential dwelling on the land.

By these proceedings, Mrs Newey seeks to challenge decisions dated 7 February 2018 by South Hams District Council, first to approve the Construction Method Statement (the “CMS”) provided for by Condition 4 of the planning permission and second, to vary Condition 3 of the same permission such that the condition requires a full structural engineering report for construction above slab level rather than before commencement.

Permission to apply for judicial review was granted by Supperstone J and came on for hearing before me on 13 June 2018. I had the benefit of skeleton arguments and detailed oral submissions by Charles Streeten for the Claimant and Philip Robson for the Defendant Council. I am grateful to them for their considerable assistance.

This history is not in dispute and the following is taken substantially from the Claimant’s Statement of Facts and Grounds.

Planning permission was granted on appeal for the erection of one new build residential dwelling. A Variation Permission was subsequently granted pursuant to s 73 of the Town and Country Planning Act 1990 (‘the TCPA”). That permission imposed conditions including:

On 11 December 2017, the Interested Party applied to the Council for the approval of a construction method statement required by Condition 4. A document entitled “Delivery Method Statement for Construction of New Dwelling at 14 Broadstone Dartmouth” was submitted with that application.

The effect of the CMS is that three scaffolding gantries including conveyor belts of approximately 3m x 3m in area have been erected, with a high-level access bridge supported between the gantries. Grants Cottage, like other neighbouring residential properties, now has scaffolding towers and conveyors enclosed in plywood running in front of their first-floor windows. This elevation is the only source of natural light to the habitable rooms on the upper floors of Grants Cottage. The construction works are intended to take 60 weeks.

The Council did not consult neighbours before determining the Approval of Reserved Conditions application (“ARC application”). The matter was determined by an officer under delegated powers. That officer did not produce a report or record the reasons for approving the application.

On 4 December 2017, the Interested Party made a further application pursuant to s 73 TCPA. This amended Condition 4 to read “the development shall be carried out in accordance with the approved Construction Method Statement (as agreed under 4191/17/ARC) throughout the construction period.” The reason given for the condition remained unchanged. In addition, Condition 3 was amended so that details of new retaining walls and steps (including a structural engineer’s report and calculations) were not required “prior to development above slab level”. The reason for this condition also remained unchanged.

Construction work has now commenced on site. The scaffold towers have been erected, and the Claimant claims that, in consequence, she is losing business.

There is no dispute about statutory scheme applicable to this case.

Section 57 of the 1990 Act requires planning permission for the development of land. Section 72 allows for the grant of planning permission subject to conditions. Those conditions must be imposed for a planning purpose, must fairly and reasonably relate to the development permitted, and must be reasonable (Newbury DC v Secretary of State for the Environment [1978] 1 WLR 1241 at 1248).

A condition may reserve matters for subsequent approval by the local planning authority. Applications for the approval of such matters must comply with article 27 of the Town and Country Planning (Development Management Procedure) Order 2015 (‘the DMPO’).

There is no statutory duty to give reasons for the grant of planning permission. Local planning authorities are, however, required to give reasons for refusing to grant planning permission, or for the imposition of conditions (see article 35(a) of the DMPO). As the Council puts it in Summary Grounds of Resistance, “the reasons for imposing a condition should identify the demonstrable planning harm which the condition is seeking to obviate” (Times Investment Ltd v Secretary of State for Environment [1990] JPL 433).

Pursuant to s 73 of the 1990 Act, a local planning authority may grant planning permission to develop land without compliance with conditions previously attached. The power under s 73 enables a local planning authority to vary the conditions attached to a permission and to attach any new conditions, provided the conditions attached could have been imposed on the original permission (R (Arrowcroft Group Plc) v Coventry City Council [2001] PLCR 7).

A successful s 73 application results in the grant of a new permission and must therefore be determined according to the current development plan and other material considerations (see Pye v Secretary of State for Environment [1998] 3 PLR 72).

Section 70(1) TCPA covers the determination of applications:

Section 92(1) and (2) TCPA provides for the grant of outline planning permission, reserving some matters for later approval:

Section 93(2) states:

The Claimant advances three grounds of challenge. First, she argues that the Council failed to keep a record of the reasons for the delegated decision to approve the application approving details observed by Condition 4, contrary to the duty imposed by regulation 7(3)(b) of the Openness of Local Government Bodies Regulations 2014 and or the common law.

The second ground, is that the Council, in approving that decision, failed to have regard to the purpose for which Condition 4 of the First Variation Permission was imposed, and failed to have regard to the harm that the proposed construction method would cause to residential amenities and to the alternative construction methods that would reduce or avoid such harm. The amenities referred to include the loss of light to Grants Cottage, and the noise, dust and other nuisance that would be suffered by adjoining residents including those at Grants Cottage. Further, it is said that the Council acted unreasonably in approving a construction method which did not satisfy the purpose behind the imposition of the condition.

The third ground, is that in granting the Second Variation Permission, the Council failed to have regard to the potential damage to the Claimant’s property that could arise as a result of excavation and construction up to slab level.

The Claimant contends that Grounds 1 and 2 relate to both decisions. The Second Variation was predicated, she says, on the ARC application decision and that decision and the Second Variation Decision stand or fall together. She says that Ground 3 relates to the Second Variation Permission only.

The Claimant seeks a declaration that the ARC application decision and the Second Variation Decision are unlawful, an order that the latter permission be quashed and the former decision re-determined.

The Council accepts that it did not give reasons for granting the approval application. It asserts that it does not usually prepare reports on Discharge of Conditions applications. Mr Streetn contends that that policy, or at least its application to the facts of this case, constitutes a breach of regulation 7 of the 2014 Regulations.

Regulation 7 of the 2014 Openness Regulations creates a duty to give reasons for certain delegated decisions. It states:

Mr Streeten says that the effect of the approval decision is to approve the construction methodology without which the development could not proceed. Accordingly, the decision has the effect of granting a licence or permission to carry-out the development in that way by the CMS. He says that the fact that the decision involves approving a matter required by condition, rather than a fresh grant of permission, is irrelevant given the terms of Regulation 7(2)(b) which focuses on the effect of the decision.

Mr Streeten further argues that Regulation 7(2)(b) is engaged because the decision had the effect of affecting the rights of an individual, namely the Claimant.

In response, Mr Robson contends that the approval decision was not the grant of permission and did not have the effect of a granted permission or licence. He further contends that the effect of the approval decision did not affect the rights of the Claimant within the meaning of those expressions in Regulation 7(2).

For reasons that will become apparent it is most convenient for me to deal in reverse order with the two ways in which it is suggested this case fell within Regulation 7(2).

It is common ground that the officers taking the decision to approve the details approved by Condition 4 were acting under a general authorisation by the Defendant Council. Accordingly, two questions arise. First, is the Claimant able to identify rights of hers which were affected by the process? Second, if so, was it the decision under challenge which caused that affect?

The evidence before me provides powerful support for the assertion that the Claimant’s rights were affected by this process. She describes, in her witness statement, the erection of scaffolding across the front of her property. There is a series of photographs in the bundle of material upon which the Claimant relied, which demonstrates the proximity of the scaffolding and associated platforms to the Claimant’s property. The scaffolding and platforms lie immediately in front of the sole window to the upper floor of the property. There is one particularly clear photograph which shows the view through that window and it is apparent that the scaffold platform passes within a few inches of the window.

The CMS used by the contractors engaged on this work describes the scaffolding access which was to be erected. It explains how the access gantry will allow spoil to be removed from the site by way of conveyor belt. Site materials were also to be brought onto the site by means of the conveyor belt. A footnote to the CMS explains that the operation of the conveyor belt could admit noise in excess of 75 decibels. Mr Streeten made reference, without objection from Mr Robson, to the World Health Organisation’s guidelines for community noise. They suggest that 55 decibels will cause serious annoyance whether daytime or evening in outdoor living areas and 75 decibels is likely to cause hearing impairment.

I accept that the enjoyment of this property would be profoundly affected by the conduct of these works. Furthermore, it seems to me beyond argument, that the right to quiet enjoyment of one’s own property is a right within the meaning of that expression in Regulation 7; the noise and dust from the conveyor belt moving materials and waste outside the first-floor window of Grants Cottage plainly affects the Claimant’s quiet enjoyment of her property. The development will also affect the light entering her property to which she has a right by prescription. Certainly, in my judgment, the conduct of these works engages the Claimant’s common law rights in her property.

Although, as will become apparent, the point is not necessary for my conclusion, I would also hold that the works potentially affect the Claimant’s rights under Article 1 of Protocol 1 of the European Convention on Human Rights (“ECHR”).

Accordingly, the Claimant is able to identify rights of hers which were affected by the process, and in my judgment it is plain that it was the approval decision which had that affect.

Mr Robson argues that it is not sufficient that such property rights are engaged by the works contemplated by the CMS; he asserts that those rights must be shown to be breached. I reject that submission. It is self-evident that one purpose behind the obligation to provide a written record of a decision falling within Paragraph 2 of Regulation 7 is to enable the recipient to know the reasons for the decision. That is required, amongst other things, to enable the person affected by the decision to determine whether or not his or her rights have been breached. It would be to make a nonsense of the evident intent behind the regulation if the obligation to provide reasons only arose if the person affected had been able, without those reasons, to establish a breach of his or her rights. Rights are affected, in my judgment, when activity potentially breaches the enjoyment of such rights.

There is here, in my view, an analogy with the jurisprudence of the ECHR. Under Art 8 of the Convention, for example, the first question to be addressed is whether rights are engaged before considering the ultimate question whether there is an interference with the exercise of those rights. In my judgment, when the regulation talks about affecting the rights of the individual, it is talking about rights being engaged by the Decision.

That being so, in my view, there was here an obligation pursuant to Regulation 7 to provide a written record of the Decision. There was no written record here and accordingly the Council were in breach of its obligations under the regulations. It is common ground that if I so find the only appropriate remedy is to quash the decision and remit it to the Council for re-decision.

That being my conclusion on this issue, it is strictly speaking unnecessary for me to go on and consider the alternative basis upon which the Claimant contends the obligation under Regulation 7 was engaged, namely, by establishing that the effect of the decision is to grant a licence or a permission. However, it may be of assistance if I express, in short terms, my conclusion on that topic too.

Mr Streeten argues that the effect of approving the ARC application is to approve the construction methodology and that has the effect of a grant of licence or permission to carry out the work in the manner proposed in the CMS. Mr Robson contends, to the contrary, that the grant of reserved matters approval is an approval that comprises planning permission; it is not some other species of approval. I prefer Mr Robson’s argument.

Section 92(1) TCPA creates the power to grant outline application, reserving some matters for a later application. Section 92(2) provides for the application for approval of reserved matters. The application for approval of reserved matters falls within the scope of s.70 as an application for a grant of planning permission and can be granted with or without conditions. As Mr Robson argues, it is not until the reserved matters are approved that a developer has full planning permission and can proceed with development. The discharge of a condition is not a species of planning permission and is not subject to s.70 TCPA. The developer already has permission and the discharge is simply a method of controlling how that permission is delivered.

The final way in which Mr Streeten put his case as to the duty to give reasons, was that even if no duty arose under the regulations, it arose as a matter of common law.

On that issue, had it mattered, I would have favoured the argument of Mr Robson. In my judgment, this case does not fall into the sort of cases being described by Lord Carnwarth in R (CPRE Kent) v Dover District Council [2017] UKSC 79. Lord Carnwarth described a case in which a Statement of Reasons was required where statute did not require them as one where:

None of those considerations apply here and, had I not taken the view I did as to the effect of the 2014 regulations, I would not have held that there was a duty at common law to give reasons.

The reason given for Condition 4 of the Variation Permission was “to ensure that the construction phase of the development does not result in harm to the living conditions of occupiers of adjoining premises”. Mr Streeten contends that the Council was therefore required to have regard to the impact that works carried out in accordance with any CMS would have on the Claimant’s living conditions. Further, he argues that the Council could not approve a CMS which would result in harm to the living conditions. He said it is obvious the Council did not acquaint itself with the information that any reasonable planning authority would require in order to determine that application because, if it had done so, it would have recognised that the development was bound to cause harm to living conditions of occupiers in adjacent properties.

Mr Robson responds that the proper approach to construing the terms of planning consents is that set out by Lord Hodge in Trump v Scottish Ministers [2015] UK SC 74 at [34]:

He says that it may be necessary to imply words into a condition to ensure it accords with common sense. Here, he argues that the word “unacceptable” must be implied into Condition 4 because some harm to occupiers of adjoining properties is inevitable.

I agree with Mr Robson. The decision whether or not to read words into a document is based on the proper interpretation of the document, but is not necessarily determined by that interpretation. At [34] in his judgment in Trump Lord Hodge said:

The context here is a condition designed to make manageable and tolerable the construction phase of the development. In my judgment, a sensible reading of this condition demands a qualifying word to be read in ahead of the word “harm”. As must have been obvious to all, building works of this type cannot conceivably be carried out without causing some harm to the occupiers of neighbouring premises.

I can see no basis on which it can be said that the officer taking this decision failed to give the consideration to all the available documents. Having done so he is bound to have appreciated that some harm was inevitable from these building works. It was then a matter for him to determine the appropriate construction methods to achieve the objective set out in the permission.

In my judgment, in consequence, the criticism of the officer’s decision, in this regard, amounts to an attack on his planning judgment and that will not found a claim for judicial review.

Accordingly, I reject Ground 2.

On 7 May 2017, a retaining wall between Grants Cottage and the development property collapsed without warning. The Officer’s Report for the final variation permission makes no mention of the risk of subsidence. Nor does it make any mention of paragraph 121 of the National Planning Policy Framework (“NPPF”). That paragraph requires that:

Mr Streeten observes that the effect of the variation of permission was to permit excavation and construction works up to the level of the concrete slab upon which the building was to sit, without prior approval by the local authority. He contends that such works were capable of affecting the stability of the neighbouring land. In those, circumstances, he says the officer’s report is materially misleading. It failed to deal with a matter upon which members ought to have received explicit advice.

Mr Robson responds, in writing, that the NPPF does not apply because it relates to ground conditions rather than instability caused through construction. By contrast, in his oral submissions, Mr Robson suggested that the officer had made reference to NPPF and so could be assumed to have had regard to the policy framework.

In my judgment, these two stances of the Defendant are mutually inconsistent. If it was the Defendant’s case that the NPPF was irrelevant, as set out in their skeleton argument, then it is difficult, if not impossible, for them to contend that it was taken into account by the officer. If it was taken into account, it was difficult for the Defendant to say it was irrelevant.

In my judgment, paragraph 121 of the NPPF was plainly in play. Whether or not the site was suitable for the proposed new use depended in part on whether it was liable to collapse when works were done upon it. That is, in fact, what happened. Given the sudden collapse of the retaining wall, prior to the decision now under challenge, it was, in my judgment, incumbent upon the officer to draw the Committee’s attention to this fact and to paragraph 121. His failure to do so undermines their decision.

For those reasons, I allow this judicial review. I will consider submission from Counsel as to the appropriate orders to make by way of relief, but it seems to me that the following is necessary:

A declaration that the approval of the construction method statement was unlawful because there was a breach of a statutory duty to give reasons.

An order quashing the Second Variation Permission for the same reason, and for the additional reason that the Defendant Council failed to have regard to the NPPF and ground conditions at the site.

A direction that the Defendant’s re-determine the approval of the application to approve the Construction Method Statement and the s.73 application to vary condition 4 permissions.