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

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:

“Recording of Decisions

7.

—(1) The decision-making officer must produce a written record of any decision which falls within paragraph (2).

(2)

A decision falls within this paragraph if it would otherwise have been taken by the relevant local government body, or a committee, sub-committee of that body or a joint committee in which that body participates, but it has been delegated to an officer of that body either—

(a)

under a specific express authorisation; or

(b)

under a general authorisation to officers to take such decisions and, the effect of the decision is to

(i)

grant a permission or licence;

(ii)

affect the rights of an individual; or

(iii)

award a contract or incur expenditure which, in either case, materially affects that relevant local government body’s financial position.

(3)

The written record must be produced as soon as reasonably practicable after the decision-making officer has made the decision and must contain the following information—

(a)

the date the decision was taken;

(b)

a record of the decision taken along with reasons for the decision;

(c)

details of alternative options, if any, considered and rejected; and

(d)

where the decision falls under paragraph (2)(a), the names of any member of the relevant local government body who has declared a conflict of interest in relation to the decision.

(4)

The duty imposed by paragraph (1) is satisfied where, in respect of a decision, a written record containing the information referred to in sub-paragraphs (a) and (b) of paragraph (3) is already required to be produced in accordance with any other statutory requirement” (emphasis added).

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:

“permission has been granted in face of substantial public opposition and against advice of officers, a project which involved major departures from the development plan or from other policies of recognised importance…such decision call for public information not just because of their immediate impact but also because…they are likely to have lasting relevance for the application of policies in future cases.”

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]:

“When the court is concerned with the interpretation of words in a condition in a public document such as a section 36 consent, it asks itself what a reasonable reader would understand the words to mean when reading the condition in the context of the other conditions and of the consent as a whole. This is an objective exercise in which the court will have regard to the natural and ordinary meaning of the relevant words, the overall purpose of the consent, any other conditions which cast light on the purpose of the relevant words, and common sense.”

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:

“Interpretation is not the same as the implication of terms. Interpretation of the words of a document is the precursor of implication. It forms the context in which the law may have to imply terms into a document, where the court concludes from its interpretation of the words used in the document that it must have been intended that the document would have a certain effect, although the words to give it that effect are absent.”

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:

“planning policies and decisions should also ensure that:

The site is suitable for its new use taking account of ground conditions and land instability, including from natural hazards or former activities such as mining, pollution arising from previous uses and any proposals for mitigation including land remediation or impacts on the natural environment arising from that remediation”

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: