Harrogate Borough Council v Secretary of State for Communities and Local Government Peter Zammitt (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Judge Behrens |
| Judgment Date | 13 May 2014 |
| Neutral Citation | [2014] EWHC 1506 (Admin) |
| Docket Number | Case No: CO/184/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 May 2014 |
2014 EWHC 1506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
The Court House
Oxford Row
Leeds LS1 3BG
His Honour Judge Behrens sitting as a Judge of the High Court in Leeds
Case No: CO/184/2014
and
John Hunter (instructed by Robert Power, Harrogate Borough Council) for the Claimant
James Burton (instructed by Stokes Partners LLP) for the Interested Party
The Secretary of State did not appear and was not represented.
Hearing date: 16 th April 2014
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This is an application by Harrogate Borough Council ("the Council") for an extension of time for the service of an appeal under section 288 of the Town and Country Planning Act 1990 ("the 1990 Act") against a decision made on 5th December 2013 by Simon Berkeley ("the Inspector") when he allowed a planning appeal by Mr Peter Zammitt ("Mr Zammitt").
Mr Zammitt opposes the application. He submits that there are serious defects with the procedure adopted by the Council. He submits that he has been prejudiced by the defects, that the application has not been made promptly and in the more robust conditions engendered in the post Jackson regime the application should be refused.
There are 4 defects relied on by Mr Zammitt. First, the claim form was not served in time. In so far as it was served at all it did not come to his notice until 18 th January 2014. The last day for service was 16 th January 2014. Second, the claim form was served at the wrong address. The claim form was hand delivered and posted to the address of Zammitt Developments Ltd ("ZDL"), 53A East Parade, Harrogate on 17 th January 2014. Mr Zammitt's residential address was, at the time, 1 Barnwell Crescent, Harrogate. Third, the Council failed to serve/join other interested parties in the proceedings. Mr Zammitt contends that ZDL and his wife were interested parties. Fourth, the Council failed to comply with the Practice Direction for Pre-Action Conduct and inform him of its intention to appeal.
The Secretary of State has by implication accepted that this is an appropriate case for time to be extended. On 25 th March 2014 the Treasury Solicitor signed a consent order which included:
"… [The Secretary of State] concedes that the said decision should be quashed on the ground that the … Inspector erred in law by misinterpreting condition 11 as requiring a scheme for only one affordable housing unit, when the description of the development in the original outline planning permission showed that three units were required"
The Council accept that the last day for service was 16 th January 2014. It believed, wrongly, that the period expired on the 17 th January 2014 and believed it had complied with its obligations by delivering and posting the relevant documents as set out above. It points out that in the planning application Mr Zammitt gave his address as 53A East Parade, Harrogate and thus it had served the documents on the address supplied by Mr Zammitt. Furthermore in the planning application Mr Zammitt certified that no-one except himself was the owner of any part of the land to which the application related. The Council do not accept that there was any obligation on them to notify Mr Zammitt before the service of the claim form and do not accept that Mr Zammitt has suffered any significant prejudice as a result of the short delay in service. In the circumstances and in the light of the attitude of the Secretary of State it contends that the application for an extension of time should be granted.
The facts.
Planning History
The application relates to a proposed housing development at Fulwith Mill Lane Harrogate. The planning history may be summarised:
1. On 25 th May 2011 the Council granted outline planning permission for 5 detached open market dwellings and 3 affordable dwelling units with occupancy restricted to people over 55 years with all matters reserved. Condition 11 was in the following terms
The development hereby permitted shall not begin until a scheme for the provision of affordable housing as part of the development has been submitted and approved in writing by the local planning authority. The affordable housing shall be provided in accordance with the approved scheme. The scheme shall include:
i) The timing of the construction of the affordable housing
ii) The arrangements to ensure that such provision is affordable for both initial and subsequent purchasers of the affordable housing and
iii) The occupancy criteria to be used for determining the identity of the prospective and successive occupiers of the affordable housing and the means by which such occupancy shall be enforced.
2. On 17 th September 2012 the Council approved a variation to Condition 11. The effect of the variation was to defer the need to apply for the approval for the affordable housing until the development of the last two open market plots. It thus permitted the development of 3 plots without the need for the approval of the affordable housing.
3. On 6 th May 2013 Mr Zammitt made a second application to vary Condition 11 by allowing the provision of the affordable housing to be provided off site. The Council did not determine the application with the result that on 9 th August 2013 Mr Zammitt's agent submitted an appeal to the Secretary of State under section 78 of the 1990 Act.
4. Following a site visit on 11 th November 2013 the Inspector held an informal hearing on 12 th November 2013. As already noted his decision letter is dated 5 th December 2013.
The Inspector's decision
In paragraph 4 of the decision letter the Inspector identified two main issues. The first was whether Condition 11 is sufficiently precise and enforceable in relation to the number of affordable homes required and the timing of their provision. The second was whether it was necessary and reasonable for the affordable housing to be provided on the appeal site.
In paragraphs 5 – 12 he considered the first issue. He concluded, as a matter of law, that in the light of the decision in I'm Your Man v Secretary of State for the Environment [1999] QBD 77 P & C R 251 Condition 11 was not sufficiently precise and enforceable. It did not require the provision of 3 affordable housing units. In order for there to be such a scheme at all there must be at least one such unit. Thus the only enforceable condition is to provide one unit.
In paragraphs 13 to 20 he considered the second issue. He considered that on the merits of this application it was not necessary for the affordable housing to be provided on site.
He thus allowed the appeal. He varied the permission by granting permission for 8 dwellings without compliance with Condition 11. He imposed a new condition which required only one affordable housing unit either on or off site.
As already noted the Secretary of State has conceded that the Inspector's interpretation of Condition 11 was wrong in law. In the course of his submissions on behalf of Mr Zammitt Mr Burton made it clear that Mr Zammitt did not accept that analysis. If this appeal is allowed to proceed it will, of course be a matter for the Court as to whether the Secretary of State's concession was rightly made. However, to put it at its lowest, the concession shows that the Council's appeal is well arguable. It is also to be noted that the result of the appeal must have exceeded Mr Zammitt's wildest expectations. In paragraphs 9 and 10 of the decision letter the Inspector said:
9. The Council asks that my decision includes a specific requirement in condition 11 for three affordable dwellings to be provided. There is no doubt that this was the expectation of both the original outline permission in 2011 and that in 2012. Indeed this has been the appellant's intention.
10. There are many factors which point in favour of the Council's request. From the evidence it is clear to me that there is a pressing need for affordable housing in Harrogate. The appellant has not contested that three affordable dwelling is the level which would ordinarily be sought from a scheme for eight homes on this site through Selective Alteration to the Harrogate Local Plan May 2004 … I have no reason to suppose otherwise. The importance of the need for a condition to secure three affordable units carries significant weight.
It seems to me to be fair to describe the decision as something of a windfall to Mr Zammitt.
The chronology following the decision
As already noted the decision of the Inspector was issued on 5 th December 2013. After discussions with the planning department and relevant councillors the decision to appeal was taken on 24 th December 2013. Due to the Christmas break no further work was undertaken until 2 nd January 2014. The papers were received from Counsel on 8 th January 2014 and delivered to the Administrative Court in Leeds on 14 th January 2014. The Part 8 Claim Form was sealed by the Court on 14 th January 2014. It named the Secretary of State and Mr Zammitt as Defendants. It was returned by the Court by post, arriving on 16 th January 2014. On 17 th January 2014 it was sent by post to the Secretary of State and to Mr Zammitt at 53A East Parade, Harrogate. It was also hand delivered to 53A East Parade, Harrogate addressed to Mr Zammitt.
53A East Parade, Harrogate...
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