Irving v Mid-Sussex District Council
| Jurisdiction | England & Wales |
| Judge | Sir Ross Cranston |
| Judgment Date | 27 June 2017 |
| Neutral Citation | [2017] EWHC 1818 (Admin) |
| Docket Number | CO/6497/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 27 June 2017 |
[2017] EWHC 1818 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Sir Ross Cranston
(Sitting as a Judge of the High Court)
CO/6497/2016
Mr Andrew Sharland (instructed by Irwin Mitchell) appeared on behalf of the Claimant
Mr Rupert Warren QC and Mr Toby Fisher (instructed by Legal Department, Mid-Sussex District Council) appeared on behalf of the Defendant
In this judicial review Mrs Felicity Irving ("the claimant") challenges decisions of the Mid-Sussex District Council ("the council") to grant planning permission to itself dated 18 December 2013 relating to the erection of a five-bedroom detached house and double garage on land to the west of Newbury at Courtmead Road, Cuckfield, West Sussex. The first ground of challenge is to that decision. Mr Justice Jay refused the application on the papers as well out of time. Before me, there is a renewed application to apply for judicial review.
Also before me is an application by the claimant to apply for judicial review in respect of the council's failure of 18 December 2013 to reconsider that decision in the light of a decision of this court in R (Application of Irving) v Mid-Sussex District Council [2016] EWHC 1529 Admin. There, Mr Justice Gilbart quashed a materially identical grant of planning permission on the grounds that it was unlawful. That is ground 2, and Mr Justice Jay granted permission in respect of it.
Mr Justice Jay also gave permission in relation to two further challenges. The first was a challenge to a decision in late September/early October 2016 to market the site and subsequently to implement the planning permission of 18 December 2013. The second challenge was to a decision dated 3 November 2016 to refuse to provide to her information about that matter. Following further disclosure the claimant has now withdrawn those challenges. The council has explained that at this point there is no decision to implement the planning permission of 18 December 2013.
Background
The background is this. In 1974, when the council was formed, land to the west of Cuckfield Church, including the land for which planning permission has been granted ("the site") came into the council's ownership. In 1987 most of that land was gifted to the newly-created Parish Council for use as allotments and as an extension to an existing graveyard. However the site was retained by the council. Most of the site falls within the conservation area.
In February 2010 a council working group considered the possible disposal of the site to generate a capital receipt. The group asked officers to submit an outline planning application for one detached dwelling with a view to selling the site. In October 2013 the council, as landowner, submitted an outline application for planning permission to itself as local planning authority. Steps were taken to rule out any conflict of interest.
There was a report to the council's cabinet members proposing an agreement for disposal of the site as a residential building plot for one detached property. The report observed the purpose of the disposal was to maximise capital receipts in a harsh financial climate so as to support the council's reserves. Under the heading "Planning Context" the report stated that the proposal was formulated against a background of central government requesting councils to maximise the value of their assets.
At a cabinet meeting on 21 October 2013 the proposal was supported. The leader of the council and the cabinet member for finance and service delivery emphasised the need to ensure that resources were available to maintain council services across the district. The cabinet took the in-principle decision to dispose of the site for full open market value as a residential building plot for one detached property. That decision was conditional on further reports on the appropriation of the site and a final decision as to its disposal.
On 24 October the council published an advertisement indicating its intention to appropriate the site. The council planning committee met on 12 December 2013. There was an officer's report recommending approval of the planning application for the site. The report contained a passage about the impact on the views into and out of the village:
"The main impact of the proposed development on the character of the new facility would be the loss of panoramic views to the south. Construction of a two-storey dwelling will obstruct long views from the western end of Courtmead Road from the public footpath abutting the northern boundary and from within the site itself. The views across open countryside to the distant South Downs are a particularly strong sense of place. Loss of these views will diminish and important quality of this part of the designated area and as a result this weighs against the favourable recommendation of the application proposals. However the area in which the diminution will be experienced is limited to the western end of Courtmead Road, the public footpath and from within the site itself. From elsewhere on the southern fringes of the conservation area similar panoramic southerly views will remain. Thus, while there is damage to a component of the conservation area, the special character of the conservation area as a whole will be preserved."
Members resolved to grant planning permission and permission was formally issued on 18 December 2013. It was conditional on the council approving reserved matters within three years. As a result of regulation 9 of the Town & Country Planning General Regulations 1992, that permission did not run with the site.
A short time later, on 23 December 2013, the cabinet decided to appropriate the site from statutory allotment land to housing land and then from housing land to planning purposes. A draft contract of sale was prepared and a local estate agent, Marcus Grimes, was instructed to conduct a marketing exercise. From that date the site was padlocked and has remained locked ever since. On 30 December 2013 the council gave notice of its intention to sell the land.
In early January 2014 the claimant's solicitor sent a pre-action letter to the council alleging that the decision was unlawful. The council responded to the allegation and no judicial review claim was issued.
Meanwhile, in late December, the site had been registered as an asset of community value. That meant that under the Localism Act 2011 the council could not sell the site for six weeks to enable local community groups to request to be treated as a bidder. Under the Localism Act no sale can then take place for six months to enable to community interest groups to assemble the resources. The Parish Council indicated its desire to bid for the site. The following month the council entered into a conditional contract of sale with one of the bidders. Subsequently, a conditional contract was entered into with SDP Construction & Builders. At the end of June 2014 The Play Meadow Users Association bid for the site but the council rejected that bid on the grounds that it fell well short of the best price that could reasonably be obtained.
In September 2014 SDP applied for planning permission. There was an officer's report recommending approval. On 13 November 2014 the planning committee agreed with the recommendation and planning permission was issued on 15 December 2014 ("the second planning permission" of the site). The claimant issued a claim for judicial review in January 2015 challenging that second planning permission. In April 2015 the council consented to quashing the permission on the basis that it was an error in the advice given to members as regards the treatment of open space.
SDP then made a materially identical planning application. The officer's report recommending approval contained the same passage about the impact on views contained in the December 2013 report, which I quoted earlier. The planning committee resolved to grant planning permission and planning permission was issued on 1 May 2015 ("the third planning permission" for the site).
In June 2015 the council, as landowner, made an application for approval of reserved matters pursuant to the 18 December 2013 permission and that was granted in October. The officer's report recommending approval contained the same passage on views as in previous reports.
The claimant issued a claim for judicial review of the third planning permission in June 2015. That led to the judgment to which I have referred of Mr Justice Gilbart. He found that the advice provided to members with regard to the impact of the proposed development on the conservation area was flawed and that rendered the grant of planning permission unlawful. That advice had been that, although there would be a harmful effect on the character and appearance of the conservation area through development, members should look at the harm in the context of the conservation area as a whole.
Mr Justice Gilbart held that if there was harm to the character and appearance of one part of the conservation area the fact that the whole would still have a special character did not overcome the fact of that harm. The question of the extent of the harm was relevant to a consideration of its effects. But it was not right that harm to one part of the conservation area did not amount to harm for the purposes of considering the duty under Section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990.
In late...
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