Sykes v Cheshire West & Chester Borough Council

This is a Town and Country Planning judicial review case brought by which Clive Sykes, who as a neighbour, seeks to challenge a decision of Cheshire West and Chester Borough Council made on 7 April 2017, by which they granted planning permission for the demolition of an existing boathouse and the erection of a Community Watersports Hub at the Rowing Club, Lower Park Road, Chester, which in fact was owned by Cheshire West and Chester Borough Council. Clive Sykes seeks to quash that decision and have the matter remitted to Cheshire West and Chester Borough Council’s planning authority for another determination.

On 17 May 2017, Clive Sykes, from his address at 19 Lower Park Road, Chester, issued a judicial review claim form through his legal representative, David Walton of Walton & Co (Planning Lawyers) Ltd, who instructed Jonathan Darby of counsel. The decision challenged, dated 7 April 2017, granted planning permission (16/05188/FULL) to Cheshire West and Chester Borough Council, and the relief sought (1) permission to proceed with judicial review and (2) an order of the court that the planning permission be quashed and the matter remitted.

The claim form attached to the statement of facts and grounds settled by Jonathan Darby is dated 16 May 2017, and so far as relevant before this court, there remained the following:

On 17 May 2017, David Richard Walton, a solicitor at Walton & Co, produced a witness statement exhibiting the following documents: (1) site plan; (2) design and access statement; (3) plans submitted as a part of the application; (4) representations on behalf of the claimant, dated 17 February 2017 and 3 April 2017; (5) officer’s report to the committee; (6) statement for the committee meeting, 4 April 2017; (7) additional late information document published on 4 April 2017; (8) decision notice 16/05188/FULL, dated 7 April 2017... (11) Environmental Protection Team comments, dated 6 March 2017, and (12) Highway officers comments dated 11 April 2017.

On 8 June 2017, Cheshire West and Chester Borough Council served an acknowledgment of service and attached the defendant’s summary grounds of resistance settled by counsel, Constanze Bell, and dated 8 June 2017. It was asserted that the planning application statement did not suggest it was a ‘members only’ condition, and so far as relevant, the response to ground 1 was there was no failure to consult, and the submission of late information did not ‘alter the nature of the application’, but rather corrected an error in the report. The response to ground 3(A) was that the law does not require an officer’s report to recite every single consultation response and propose conditions at length; Respond to ground 4: Committee were not advised that there was an understanding that the facility was a private facility, but rather were informed that there was a question as to this regard, and the application was for a Watersports Hub and not a members only private facility.

On 14 June 2017, Her Honour Judge Belcher, sitting as the Judge of the High Court, granted permission on grounds 1, 4 and 3(A) and made certain case management directions allowing for the defendant’s detailed grounds of resistance, dated 18 July 2017, again settled by Constanze Bell, and a witness statement, dated 19 July 2017, of Nial Casselden, a Planning Team Manager at Cheshire West and Chester Borough Council, together with a witness statement from Luke Peaker of the Highways Department, dated 19 July 2017. On 7 April 2017, Jonathan Darby of counsel settled the summary reply, which alluded to Authority’s duty to ‘act fairly’ in determining planning applications and that a failure to consult upon highly material amendment was contrary to the rules of natural justice.

The skeleton argument of Jonathan Darby is dated 24 November 2017. The skeleton argument of Constanze Bell is dated 4 December 2017. In addition to the file containing the documents referred to above, two further files of authorities have been provided by counsel. I propose to deal with this case in that order, namely setting out the background facts, then the disputed facts, followed the legal framework, followed by a discussion on grounds 1, and more shortly on 3(A) and 4, and the order.

Clive Sykes’ house and garden at 19 Lower Park Road directly adjoins the existing boathouse and club grounds, and both face and run down directly onto the River Dee, separated only by towpath running along its southern bank.

On 10 November 2016, Cheshire West and Chester Borough Council issued a design and access statement for the Chester Community Watersports Hub. The statement made the following points:

Among the illustrations of the Chester Watersports Hub was the series of drawings prepared by Ellis Williams Architects with job number 2134 dated July and August 2016, showing the existing site planned, the proposed site planned and three elevational drawings. The drawing showed the existing boathouse set back from the River Dee with a concrete hardstanding adjoining the public towpath. Proposed new building location is right upon the public towpath next to the River Dee and is substantially larger than the existing building to be demolished. The new boathouse has a balcony area on the east side shown on one of the drawings and Clive Sykes property’ at 19 Lower Road is also shown, and this can be scaled at a known distance.

Cheshire West and Chester Borough Council issued a planning statement dated November 2016, and set out, after an introduction, the planning policy overview, the principle of the development and other planning considerations. The document contained the following:

On 17 February 2017, Walton & Co submitted an objection on behalf of Mr and Mrs Sykes that Chester Community Watersports Hub and made the following points:

On 6 March 2017, the Environmental Protection Team reported their observations and recommendations for this scheme. They noted under the heading Noise and Conditions respectfully as follows:

In preparing for the meeting Luke Peaker of the Highways Department reported as follows in an undated document:

On 3 April 2017, Walton & Co made further representations in respect of the scheme. The letter made the following points:

On 4 April 2017, Cheshire West and Chester Borough Council issued the officer’s report, which recommended approval. The application applicant was Jane Herrington of Cheshire West and Chester Borough Council. The case officer was Conor Perrett and the ward members were Councillor Razia Daniels and Neil Sullivan at whose request the scheme had been presented for planning committee. The official report provides the following matters:

Clive Sykes provides a short witness statement, the details of which are set out below.

On 4 April 2017, Cheshire West and Chester Borough Council provide additional papers to the planning committee meeting that day prepared by Nial Casselden, which included details of late information 1 as follows:

A meeting took place on 4 April 2017, at which item 8 on the planning committee’s agenda was raised. A web cast contained recording of that meeting is available to this court. It is apparent from the face of that meeting who attended in addition to the officers, in addition to Mr Sullivan, Daniels and Jones of whom reference is made. There was also, I am informed, the following attendance: Messrs Garrett, Beckett, Blackmore and Hallbrook, Johnson, Ramsey, Watson, Whitehead and Wright, all of whom were counsellors, as I understand matters.

On 7 April 2017, under the provisions of the Town and Country Planning Act 1990, Cheshire West and Chester Borough Council gave notice of planning permission under 16/05188/FULL in respect of proposed demolition of the boathouse (Class D2) and erection of a Watersports Hub (Class D2) and associated parking access landscape and plant of the rowing club Lower Road, Chester. There was no condition in respect of the use of the Watersports Hub by members of the club only, so far as the material of the following conditions were imposed:

Clive Sykes was unable to attend the meeting on 4 April 2017, because he, as with many others, was on Easter holiday. He does provide a short undated statement making his clear his position, namely, ‘There is a strong likelihood that the building will be used for party venue, car boot sales etc., when/if it becomes financially unviable’.

The meeting on 4 April 2017 attended by four councillors: Lindsey Skinner, the Senior Planning Officer; Paul Parry, the Principal Development Officer; Nial Casselden, the Planning Team Manager; and Luke Peaker of the Highways Department. As a matter of record, Conor Perrett did not attend and I have, in paragraph 19 above, indicated the ward members and councillors who did attend.

Luke Peaker, the Highways Development Officer, indicated in his witness statement that he discovered a change and explains his reaction as follows:

Nial Casselden, the Planning Team Manager, who prepared the additional late information report explained his approach to this change:

The web cast footage of the planning committee meeting records amongst other matters that Councillor Sullivan commented as follows, ‘I am pleased that it is stated that their potential licence would not involve the public and therefore social facilities would only be for club users, which I think is very important’. Same footage, Councillor Daniels says, ‘This community hub will be as the name suggests open to everyone, which is absolutely fantastic but it will be attractive to young people who would not normally be able to access such a great facility’.

Councillor Jones sought clarification rather than recommendation for a licensing committee that the use is for members only and not the general public was informed by the Chair, that this for the matter of licensing committee. In reliance it is reliance upon this distributed evidence of fact (maybe opinions) that Cheshire West and Chester Borough Council assert that if the planning permission was quashed and resubmitted a further decision it will make no difference to the outcome.

It is common ground between counsel that Section 70 (2) of the Town and Country Planning Act 1990, requires Planning Authorities in dealing with planning permission applications to have regard to ‘any other material consideration’. What amounts to material consideration is a question of law. However, also in common ground between counsel that the general principles concerning the issue of rationality and the lawfulness and fairness of such a process starts with a decision of Lord Woolf MR in R v North and East Devon Health Authority ex parte Coughlan [2001] 2 WLR 622 viz:

The claimant’s skeleton argument relied upon Medway Council and Kent County Council & Ors, R (on the application of) v Secretary of State for Transport [2002] EWHC 2516, Stefan (Dr Marta) v The General Medical Council [1999] I WLR 1293 and the Crown on the application of R (Moseley) v Haringey London Borough Council [2014] UKSC56, and in particular the judgment of Lord Wilson from paragraph 23 onwards, which sets out the law on ‘fairness’.

Though not in the agreed bundles of authorities, Jonathan Darby handed up a copy of the decision of John Howells QC in Holden Studios v the Council of London Borough of Hackney [2017] EWHC 2823. It is clear that decision proceeds from the seminal decision of Lord Wilson in [R (Moseley) v Haringey London Borough Council (supra) which so far as is relevant provides as follows:

When considering the officer’s report, and this again is common ground between counsel, it is to be borne in mind the dictum of Lady Hale in Morge v Hampshire Borough Council [2011] UKSA 36 viz:

Both counsel’s skeleton arguments relied on the decision in R v Mendip District Council [2008] PNCR 500.

On the question of conditions attached to a planning application, though not in the bundle of the agreed authorities, parties provided to me a copy of Newbury District Council v Secretary of State for the Environment [1981] AC578, the well-known dictum of Lord Scarman at page 615 viz: ‘The three tests are (1) the condition must fairly and reasonably relate to the provision of the development plan, the planning consideration; (2) must be fairly and reasonably relate to the permission permitted development; (3) must be such as reasonable planning authority, duly appreciating statutory duties, could have properly imposed’. It was therefore reasonably clear as to the correct legal approach I should take in answering the disputed grounds in this case.

I propose to deal with Ground 1 in some more detail, leaving Ground 3(A) and 4 to be dealt with more shortly. Ground 1 was plainly the main argument made by Jonathan Darby in his oral submissions before this court. Ground 3(A) is a standalone and short point. Ground 4, as he indicated, rightly in my judgement, is oral submissions in effect followed from Ground 1 and did not add more to the relief sought.

Any fair reading of a combination of one or more salient planning documents published by Chester West and Cheshire Borough Council prior to the day of the planning hearing make it palpably clear that it was their intention as owners of the site and applicants under planning application after 18 month period of consultation that the Watersports Hub was to be for use of a private club mainly the boathouse and that had existed for many years before, well-known for its members only. Under the background facts above, I have set out above material representations made by that authority in the design and access statement 10 November 2016, the drawings prepared by Ellis Williams, the planning statement dated November 2016, and indeed the officer’s report prepared for the committee meeting on 4 April 2017, the case of Conor Perrett. If there had been any doubt as to this, it seems perfectly clear that there would not have been a need for Nial Casselden to have produced the additional paper on 4 April 2017, which made plain in the late information, and which corrected the clear representation in the report and fundamentally changed accessibility from members to those of the general public. His witness statement entirely supports this change. Somewhat curiously, he seems to consider that this matter was ‘clarification’ in the sense that the use of building remained the same as D2 and all he was doing was making it clear that the public will have access to the facilities. It is difficult to imagine how a change of use of facility from members only to those of the public can possibly be described as a ‘clarification’. In the ordinary use of the English language this is best described as a volte-face (of course allowing the introduction of French into the English language).

Moreover, when reading each and all of those documents generally, it is clear not only that the Planning Department were concerned about the effect of this development generally on the neighbourhood but specifically with regard to 19 Lower Road being Clive Sykes’ house, as he was the next door neighbour, but so were the Environmental Protection Team and the Highways Department who all made it perfectly clear in their reports, particularly the Highway Protection Team, that the concern was based both on noise and excessive use of this facility should members of the general public be permitted to use the site. Whether considering (1) who should be heard and (2) who would be prejudice should there be a fundamental change from members club to a facility open to all the public, it must be perfectly plain, objectively speaking, that Clive Sykes and his family were prime candidates, not to mention the other neighbours and 17 objectors who specifically raised this issue as is apparent from the documents I have set out above.

To meet the well-established test for procedural fairness fundamental to any judicial review case the line of cases common on both counsels skeleton starting with Lord Woolf and the R v North East Devon Health Authority ex parte Coughlansupra, via the principles enunciated in the R (Moseley) v Haringey London Borough Council, per Lord Wilson and more recently John Howell QC sitting as a Deputy High Court Judge in Holborn v Council London Borough Haringey supra, all point to a clear and consistent line of legal authority which this court is bound to follow.

Among the main responses to this procedure on fairness relied upon by Constanze Bell of counsel is a constant refrain that it would have made no difference to the unanimous decision of the planning permission granted. This is always a difficult matter to consider and in effect requires a counter-factual review of what would have happened but for the inability of a fair procedure permitting Clive Sykes and other neighbours to fully and fairly respond to two additional late documents. The test rightly set out by John Howell QC in Holborn (supra) and quoted above deals with this as a relatively low threshold. The approach taken in their witness evidence by both the Planning and Highway Officers who attended the meeting and therefore know what, in fact, the committee members discussed having been informed of the additional information is purport to second guess how they would have reacted. Plainly these are assumptions or inferences, not matters this court is likely to accept and, speaking for myself, I reject them. I have to say I found this unhelpful and indeed counterintuitive. The whole concept of natural justice and the ability to have a full and fair hearing is predicated on the decision-makers having heard further representations and then deciding accordingly. It should not be based on those who attended guessing what the outcome would have been, as if they can divine that.

Whilst I appreciate in this matter I have a discretion, and I am entitled and required to exercise that, I am unconvinced of the arguments made by Constanze Bell that Clive Sykes made all the necessary representations as to the private or public facility at the relevant time (and I have set them out above) and he has failed to provide any further witness evidence as to what if anything he could or would wish to say. From my reading of the documentation this question does not appear to have featured in any way in the officer’s report, indeed one would not expect to in view of the fact the relevant officer believed to be a private facility to have raised this matter in his report. That Clive Sykes is concerned about this matter is obvious from the evidence which I have set out about and do not repeat again.

The report of the Environmental Protection Team has to be read as a whole. As set out above, having recourse to full report which I have read carefully, it is apparent that the conditions attached as appropriate opening hours were clear, and the fact that further tests were necessary simply does not indicate that the noise from this new facility had not been fully assessed, but indeed was a consideration that had to be placed in the planning permission stage.

In fact the planning permission did limit the hours, which was a noise condition and moreover, imposed a further firm condition of a noise management plan, which would be considered and approved in due course. Whilst I appreciate that pre-reporting tests could have been of use into a planning decision, the fact that subsequently a condition is imposed which will have the similar effect of controlling noise from the very source which could affect Clive Sykes’ property makes it plain that the concerns expressed by Clive Sykes in this regard are and will be catered for in the future.

The suggestion that this matter was not properly reported to by the officer’s report is a matter which as with many of these planning applications and committees being experienced members could have been dealt with at the hearing without a full need for further adumbration. Reliance was rightly placed by Constanze Bell, the decision Gilbert J in Hill v Cornwall Council [2016] EWHC 1264, which is entirely appropriate in the context of noise complaints. In these circumstances, I reject Ground 3(A).

I consider this additional ground to simply follow on from Ground 1 and counsel accepts this approach. The application of the test in E v Secretary of State the Home Department [2004] EWCA Civ 49 per Carnwath J, as he then was, at paragraph 63, setting up the five material ingredients for such a case was briefly applied to the facts of this case by Jonathan Darby. Whilst technically one can mount an argument of this type, in reality and on the facts set out above and in this case as to the real fundamental complaint of Clive Sykes, these matters of proper consultation is forced into a different category altogether.

There can be no dispute the committee themselves were properly informed that this a public facility in spite some doubt has a full and proper airing amongst a group of committee members and those members of the public who did attend the meeting dealing with this item 8 on the agenda, I am satisfied on the evidence put before the court that the probability is they made no mistake. Attention was drawn, as far as I can understand, to two additional matters set out in paper 1 and 2 and this may declare this for the public facility in the meeting preceded on that basis was not the committee members misunderstood what was before them, but in fact failed to have the opportunity to appreciate fairly the importance and meaning in effect of this distinction.

What appears to have happened is that there was some confusion as to the planning and licensing distinction, that the latter would control future use of the public facility. This is not how I have understood the case mistake to proceed in the circumstance which Ground 1 has proved successful and correctly captures the mischief that must have taken place. In this case, I give Ground 4 no further consideration, and it can be rejected.

On the basis of the permission to proceed with the judicial review granted by Her Honour Judge Belcher on 14 June 2017, in respect of grounds 1, 3(A) and 4, I make the following orders: