John Southwood v Buckinghamshire Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 22 January 2024 |
| Neutral Citation | [2024] EWHC 71 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4688/2022 and CO/4698/2022 |
and
[2024] EWHC 71 (Admin)
Mr Justice Julian Knowles
Case No: CO/4688/2022 and CO/4698/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Celina Colquhoun (instructed by Addleshaw Goddard LLP) for the Claimant
Richard Glover KC (instructed by Buckinghamshire Council Legal Services) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 18 May 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 22 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This application for judicial review relates to a planning matter which has a long and complicated history going back over many years. The case concerns a site on land adjacent to Wayside, Oving Road, Whitchurch, Aylesbury, Buckinghamshire (the Site).
As initially framed, the Claimant challenged two decisions said to have been made on 28 October 2022 by the Defendant, Buckinghamshire Council, in its capacity as local planning authority.
Until 2020 the relevant local planning authority was Aylesbury Vale District Council (AVDC) and some of the material in these claims came from that authority. AVDC was merged with other councils from 1 April 2020 to form a new unitary authority, Buckinghamshire Council, which took over planning matters. Hence, in this judgment the term ‘Defendant’ should be taken to refer either to AVDC or Buckinghamshire Council, as appropriate.
The two decisions that are or were challenged are these:
a. The decision of 28 October 2022 to decline to take enforcement action in respect of a building (the As Built Building) which was built following a grant of permission for a storage building in 2010, but which the Claimant says did not comply with that permission. This decision is the subject of CO/4688/2022 (the Enforcement JR).
b. The decision of 28 October 2022 to grant permission for a change of use (Ref 20/03073/AP) in relation to the As Built Building from storage to residential use (the Change of Use Decision). This decision is the subject of CO/4698/2022 (the Permission JR).
As I will explain in a moment, the Enforcement JR has fallen away and I am only concerned with the Permission JR.
The Claimant is the owner of the property adjoining the Site directly to the east, where he resides.
The Interested Party is the owner of the Site and the wider area of land of which the Site forms the northern part (the Land).
The Change of Use Decision was made by a delegated officer, Ms Armstrong, on the basis of a report by Ms Jarvis, a planning consultant to the Defendant, dated 19 October 2022 (the Jarvis Report) recommending approval.
Permission was granted by Neil Cameron KC sitting as a Deputy High Court judge in respect of both claims by way of separate orders:
a. on 10 February 2023 in relation to the Enforcement JR; and
b. on 14 February 2023 in respect of the Permission JR.
On 14 February 2023 the judge also ordered (at [4]) that the two claims should be heard together.
Mr Cameron granted permission on the following grounds only:
a. In the Enforcement JR, Grounds 2 and 3, namely:
(i) Ground 2: the Defendant wrongly concluded that there had been no breach of planning control in relation to the construction of the As Built Building.
(ii) Ground 3: the Defendant adopted an unlawful approach to interpreting the planning permission when considering whether the development accorded with it and whether a breach of planning control had arisen.
b. In the Permission JR, Grounds 2, 3 and 4, namely:
(i) Ground 2: there is an error on the face of the permission granted in that it refers to the wrong plan ref, namely PL-01, when it should be PL-01A.
(ii) Ground 3: the Defendant adopted a wrongful approach to the interpretation of the relevant Planning Permission and reached erroneous conclusions in respect of the differences between the As Built and Permitted building.
(iii) Ground 4: the Defendant adopted a wrongful approach to the lawful implementation of the relevant Planning Permission in light of the failures to accord with the permission.
Grounds 2 and 3 of the Enforcement JR and Grounds 3 and 4 of the Permission JR effectively overlap. Ground 2 of the Permission JR has fallen away and I am only concerned with Grounds 3 and 4.
In granting permission on the Permission JR, Mr Cameron said:
“Grounds 3 and 4:
a. Ms Jarvis advised that:
(i) The lawfulness of the existing As Built Building was a main issue (paragraph 5.11).
(ii) The building has not been built fully in accordance with the approved plans both externally and internally (paragraphs 5.24 and 5.28).
(iii) The building is not materially different from the original permission (paragraph 5.28).
(iv) At paragraph 5.38 Ms Jarvis considers whether it is expedient to take enforcement action.
(v) At paragraph 5.40 Ms Jarvis states:
“Whilst the building that has been erected is not in full accordance with the original permission, it is not fundamentally or materially different from that which was permitted as to justify taking enforcement action;”
b. As stated at paragraph 145 of the Claimant's Statement of Facts and Grounds (CSFG) the fact that the Council has decided not to issue an enforcement notice is not of itself a sufficient basis for a finding that the As Built Building was lawful.
c. It is arguable that it is not clear from the report whether the conclusion was that the departure from the approved plans was not material, and therefore the building works had been carried out in accordance with planning permission, or whether the conclusion was that the works were not carried out in accordance with planning permission, but the departure from the approved plans was not so material as to justify taking enforcement action.
d. On that basis it is arguable that the Defendant did not determine whether the As Built Building was lawful.”
In this judgment, ‘SFG’ stands for the Claimant's ‘Summary Facts and Grounds’; ‘SGCC’ for the Defendant's ‘Summary Grounds for Contesting Claim’; and ‘DGCC’ for the Defendant's ‘Detailed Grounds for Contesting Claim’. Unless otherwise noted all references are to the documents filed in the Permission JR.
I should say the papers are voluminous (unsurprisingly, given the history) and given the complexity of the history, the matter has taken some time to consider.
The Enforcement JR
With regard to the Enforcement JR, permission to proceed was based upon the Defendant's position at the time as set out in its SGCC which were lodged with the Defendant's Acknowledgment of Service dated 18 January 2023. The Defendant then submitted its DGCC on or about 17 March 2023 (ie, after permission had been granted).
The Defendant's position in the SGCC and the DGCC in relation to the decision not to take enforcement action was that it was lawful and had been reasonably made (see DGCC, [20]). The Defendant did not suggest that no such decision had been made.
However, on 19 April 2023 at the hearing before Lavender J of the Claimant's renewal application of the grounds on which permission had not been granted by Mr Cameron, the Defendant changed its position in respect of the Enforcement JR. Its new position was that it considered it had only made one decision on 28 October 2022, namely, to grant planning permission, and that it did not make a decision declining to take enforcement action.
Ms Colquhoun on behalf of the Claimant said that whilst the Claimant was surprised by this change of position, the Claimant is not in a position to take issue with it, and so as I have said that matter has now fallen away.
Background
The Site is situated within the locally designated Quainton — Wing Hills Area of Attractive Landscape (AAL). The Claimant says that the land on which the Site is situated plays an important role in preserving the openness of the countryside and safeguarding the character of the AAL. He says the Defendant and Inspectors (on appeal over the years) have recognised the importance of the land in question when rejecting all but one of the Interested Party's residential schemes prior to the latest proposal that is challenged regarding change of use.
Since the 1990s, there have been numerous attempts by the Interested Party — the Claimant says 13 — to obtain planning permission for residential or other development on the Site.
In her Report, Ms Jarvis stated:
“3.1 There is a lengthy and complex planning history relating to the site and the adjoining land to the south. Between 1984 and 2001 a number of applications seeking permission for residential development were refused and dismissed on appeal, essentially on grounds that the site was beyond the built-up limits of the settlement and that the development, if permitted, would result in the intensification and extension of sporadic development which would have a detrimental effect on the character of the countryside and Area of Attractive Landscape (AAL).”
Paragraph 3 of the officer's report from early 2021 (OR 2021) in respect of an initial decision granting the Interested Party's application for change of use (Ref 20/03073/AP), but which was subsequently quashed on judicial review, lists some of these earlier applications as follows:
“84/00407/AV — ERECTION OF TWO DETACHED DWELLINGS – Refused
98/01956/AOP — SITE FOR 2 DWELLINGS – Refused
01/01335/APP — Erection of dwelling – Refused
10/00583/APP — Erection of single storey building for storage including tractors and farm machinery and provision of track to existing field access – Refused (allowed on appeal)
10/02003/APP — Erection of stable block...
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