Brent LBC v Secretary of State for Communities and Local Governmment and Ashia Centur
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Keene,Lord Justice Goldring |
| Judgment Date | 17 February 2009 |
| Neutral Citation | [2009] EWCA Civ 328 |
| Docket Number | Case No: C1/2008/2097 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 February 2009 |
[2009] EWCA Civ 328
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE LLOYD JONES)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Keene and
Lord Justice Goldring
Case No: C1/2008/2097
Mr R Green (instructed by Brent Legal and Democratic Services) appeared on behalf of the Appellant.
Ms S Sheikh (instructed by Messrs Blandy & Blandy) appeared on behalf of the Respondent.
Lord Justice Pill:
This is an appeal by Brent London Borough Council (“the council”) against a judgment of Lloyd Jones J dated 9 June 2008, by which he ordered that the council's application under section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) to quash a decision of the Secretary of State for Communities and Local Government (“the Secretary of State”) be struck out.
The decision of the Secretary of State, made by an inspector appointed by her and dated 19 December 2007 following a local public inquiry, granted Ashia Centur Limited (“Ashia”) a certificate of lawful use for development, under section 192 of the 1990 Act, on a site at the former Twyford Tip, London NW10. The Inspector took the unusual course of ordering the council to pay the costs of the appeal, having considered the way in which they had conducted it.
Ashia sought to strike out the claim under CPR 3.4(2) and also summary judgment on the ground that the council had no real prospect of succeeding on their claim ( CPR 24.2).
On 15 September 1993 the council granted Ashia outline planning permission for development of the site by the removal of tipped soil and the erection of an Asian Centre comprising a hotel, television centre, social, community and leisure facilities with service roads and car parking. Grants were later made approving reserved matters and providing extensions of time in which to submit details and begin development. It is common ground that these required the initiation of development by 12 January 2004 and the issue is whether the permitted development had lawfully begun by that date.
Works were carried out on the site in 2002 and 2003. It is clear from documents to which we have been referred that during the years after 1993 there were negotiations between the council and Ashia. We have been shown a number of approved plans in relation to the access road.
As summarised on behalf of the council, permission to appeal has been granted on two grounds. (a) The judge erred in holding that the access works lawfully began the permitted development; (b) The judge erred in finding that if the council's statutory challenge were to be permitted to go ahead, it would involve the court in coming to conclusions which would involve the exercise of planning judgment. Mr Green, who appears for the council, told the court that the second of those grounds is merely a reply to an argument on behalf of Ashia that the court ought not to consider the first of the grounds because the point had not been taken before the Inspector.
Before the Inspector the council's case was that the works carried out on site were not material operations. Development is defined in section 55 of the 1990 Act, and section 56(2) provides that:
“…development shall be taken to be begun on the earliest date on which any of the following operations comprised in the development begins to be carried out”
Under section 56(4)(d), “Material operation” includes:
“Any operation in the course of laying out or constructing a road or part of a road”.
In Malvern Hills DC v Secretary of State for the Environment [1982] JPL 439 the Court of Appeal upheld a finding that the marking out of the line and width of a road with pegs amounted to an operation in the course of laying out part of a road as defined in subsection (4)(d).
Jacob LJ granted limited permission on paper. He refused permission to argue the point taken before the Inspector, that is, that the relevant works were not material operations. The application for permission on that ground has not been renewed before this court.
On behalf of Ashia Ms Sheikh persists in the point that the court should not hear the council on the point now sought to be taken. The present point was first taken before the judge, it not having been taken before the Inspector. In relation to that issue, the judge stated at paragraph 19:
“However the Council now says that the matter goes rather farther than that. The Council say that, having expressly raised the issue of non–compliance with [condition] 6, the Inspector should have gone on to decide the Whitley point. In his skeleton, Mr Green puts it in this way: he says having expressly raised the issue of non–compliance with condition 6 of the permission, it was incumbent on the Inspector to deal with it if, as the interested party alleges in paragraph 16 of its grounds, the Inspector found that the works were undertaken in accordance with the permission. He [Mr Green] says it is a mystery how the Inspector dealt with non–compliance with condition 6, or indeed what other works were properly capable of beginning the development. In support of his case on ground 2, Mr Green relies, as I have indicated, on the judgment of Woolf LJ in Whitley, to which I shall return.” [And so shall I]
As recorded by the judge at paragraph 18, Mr Green, who also appeared on behalf of the council at the inquiry, accepted that although he had taken the point about non–compliance with condition 6 it was not in purported reliance on any Whitley argument (Whitley & Sons v The Secretary of State for Wales [1992] 64 P & CR 296). The judge was, however, prepared to hear argument on the Whitley issue, to be considered later. In my judgment it is not open to the council to take before these courts the Whitley point when it was not taken before the Inspector. I would dismiss the appeal on that ground, but I propose to go on, as did the judge, to deal with the merits of the appeal on the ground for which permission has been given. I propose to do that first because my conclusion on the admissibility issue will be more readily understood once extracts from the Inspector's report and the issues which arise on it are considered.
Mr Green's submission on behalf of the council on the merits is that work the Inspector found to be material to the development was in breach of condition 6 attached to the permission, because specifications, including details of lighting and drainage mentioned in the condition, and such other questions as the width of pavements, had not been submitted to and approved by the local authority before the work was done. Mr Green submits that development begins within the meaning of sections 55 and 56 only if work is lawfully done. Work on the access road was not lawfully done because Ashia had failed to comply with condition 6. Development under section 56 must be authorised development.
The Inspector first considered the access road and the work done on it at paragraph 12 of his decision letter. It is relevant to record that the approved plans include a new access point serving both the appeal site and the waste station to the south of the existing access. That is shown as closed, with a new junction arrangement between what would be the sole access road into the appeal site and the existing route into the waste station. Works are also intended to be carried out both within Abbey Road and within the site boundaries pursuant to sections 38 and 278 of the Highways Act 1980. As was done at the inquiry I refer to drawing 01019/2B appended to a Deed of Agreement of 20 September 2002 as representing the approved site arrangements.
The Inspector set out in considerable detail the evidence about the work which done on site prior to 12 January 2004. He concluded at paragraph 24:
“From the plans available. the vehicular carriageway of the permitted access would be slightly less than 15m wide, to the west of the pedestrian island shown at the site entrance. The Council's witness not only accepted that the works outlined above had taken place, but that the area treated as in Bundle 4 was 'within the approved layout' or 'overlapped' it. He also accepted, in principle, that most of the works described could be 'material operations' within section 56. Leaving the planning permission aside, I have not a scintilla of doubt that the works under Bundle 4, and some at least under Bundle 3, would by themselves amount to operational development under section 55 [of the 1990 Act]. The issue therefore becomes one of whether they were 'comprised in the development'.”
The Inspector was there echoing what he had stated early in his decision letter at paragraph 8:
“That in turn depends on whether the development had been begun by the agreed date…”
The Inspector then referred to section 56(2) and section 56(4) which I have already set out. On that issue the Inspector set out the council's case:
“25. The Council base their case here principally on the nature and purpose of the works carried out. First, there is no evidence to support their earlier assertion that the PermaZyme treatment would be incapable of bearing heavy traffic. Their witness also readily acknowledged that he was not 'qualified to say' whether it was capable of forming a permanent road. None indeed of the evidence about its properties was significantly challenged. Further, given the readily available information about it, I cannot see any relevance in the fact that the...
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