Ldra Ltd and Others v Secretary of State for Communities and Local Government and Others
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Lang |
| Judgment Date | 06 May 2016 |
| Neutral Citation | [2016] EWHC 950 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/5680/2015 |
| Date | 06 May 2016 |
[2016] EWHC 950 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Lang DBE
Case No: CO/5680/2015
Timothy Jones (instructed by Richard Buxton Solicitors) for the Claimants
Stephen Whale (instructed by the Government Legal Department) for the First Defendant
The Second and Third Defendants did not appear and were not represented
Hearing date: 14 April 2016
In this claim under section 288 of the Town and Country Planning Act 1990 ("TCPA 1990"), the Claimants applied to quash the decision of the Secretary of State for Communities and Local Government, dated 13 October 2015, made on his behalf by an Inspector (Mr Richard Clegg), in which he allowed an appeal by Cammell Laird Shiprepairers & Shipbuilders Ltd ("the developer"), and granted planning permission for an on-shore office and warehouse building at the car park, Alabama Way, Birkenhead, Merseyside, CH41 5LJ ("the Site"), to serve as a marine operations and maintenance facility for off-shore projects The off-shore projects to be serviced by the development were windfarms in Liverpool Bay and the Irish Sea. A marine licence had been granted for the proposed floating pontoon and linkspan structure.
The Site is immediately adjacent to the River Mersey. Once the site of a railway, the car park and the adjacent Monks Ferry slipway are now owned by Wirrall Borough Council ("WBC"). The public currently enjoy access to the car park. Charter boat companies use the slipway with the knowledge of WBC. WBC has resolved that its freehold interest in the Site could be sold to the developer. However, planning permission for this development was refused by WBC on 23 July 2014, on the grounds that it would result in an unacceptable loss of amenity for the occupiers at the adjacent residential development at Priory Wharf by virtue of increased noise, general disturbance and poor outlook.
The site is within an area designated as a Primarily Industrial Area in the adopted Wirral Unitary Development Plan ("Wirral UDP"). Policy EM6 provides that applications for new employment development (defined as falling within Classes B1, B2 and B8 of the Town and Country Planning (Use Classes) Order 1987)) will be permitted, provided it does not lead to an unacceptable loss of amenity or have an adverse effect upon neighbouring uses. WBC concluded that the potential impact upon occupants of Priory Wharf would be contrary to Policy EM6.
On appeal by the developer, the Inspector identified six main issues (Appeal Decision ("AD") [7]):
i) The effect of the proposed development on the living conditions of nearby residents of Priory Wharf.
ii) The effect of the proposed development on the operation of LRDA Ltd, the occupier of the offices to the south of the site.
iii) The effect of the proposed development on nature conservation.
iv) The effect of the proposed development on heritage assets.
v) The suitability of the site for development, having regard to flood risk.
vi) The effect of other considerations in the overall planning balance.
The appeal was opposed by the Claimants, who were adversely affected by the proposal, and had previously objected to WBC.
The First Claimant operates a high technology business on the industrial park immediately to the south of the Site. The Second Claimant, Dr Hennell, is the managing director and founder of the First Claimant company.
The Third Claimant, Mr Evans, is a member of the Mersey Charter Boat Association, a qualified yacht master and a charter-boat operator. He operates the "Mersey Lass" on the River Mersey for fishing trips and wreck diving. He has operated a charter boat service on the River Mersey since 1991.
The Fourth Claimant is the Priory Wharf Management Company Ltd which operates for the benefit of residents of Priory Wharf, the four storey residential complex located immediately to the north of the Site.
After a hearing lasting two days, and two site visits, the Inspector decided that the appeal should be allowed and planning permission should be granted, subject to conditions. His overall conclusions were as follows:
"75. The appeal site lies within a primary industrial area on the UDP Proposals Map. Within this designation, the proposed offices and warehouse would be acceptable in principle. However the criteria in Policies EM6 and EM7 apply to new employment development and are also relevant. The development of the site at Alabama Way for a marine operations and maintenance facility would not cause unacceptable harm to the living conditions of nearby residents at Priory Wharf, nor would it result in material harm to the operations of LDRA Ltd. Insofar as nature conservation interests are concerned, there would be no significant adverse effect, and I have found no conflict with Policies EM6 and EM7.
76. The proposal would not detract from the significance of heritage assets, and there would be no conflict with Policy CH1 of the UDP which seeks to safeguard listed buildings. Policies in the UDP concerning the developed coastal zone and the inter-tidal zone are also relevant to the appeal proposal. Whilst there is compliance with most provisions of Policies CO1 and COI7, the closure of about 40m of the riverside footway would conflict with the requirement to preserve public access to the coast.
77. As a consequence of the conflict with Policy CO1 concerning public access to the coast the proposal would not be fully consistent with the Development Plan. I consider that the effect on jobs is of neutral significance in the planning balance, but the proposal would contribute to the implementation of off-shore renewable energy projects, and it would thereby accord with a core planning principle of the NPPF. This is a significant benefit of the proposal which clearly outweighs the limited harm of conflict with Policy CO1 arising from the loss of a short stretch of footway."
In their application under section 288 TCPA 1990, the Claimants submitted that the Inspector erred in respect of his approach to:
i) The adverse impact of vibration on the First Claimant's business;
ii) The adverse impact on disabled persons, because of loss of the car park, and access to the riverside.
iii) The loss of access to the slipway by charter-boat operators.
iv) The proposed condition excluding B2 uses in the building.
v) An alternative available site.
Ground 5 was added by way of a late amendment, and both parties filed late witness statements in respect of the issues which it raised.
The First Defendant's response was that the decision did not disclose any error of law on the part of the Inspector, who had considered all relevant matters, giving them such weight as he found appropriate, and reached conclusions on the planning merits of the proposal which could not be successfully challenged.
Legal framework
Under section 288 TCPA 1990, a person aggrieved may apply to quash a decision on the grounds that (a) it is not within the powers of the Act; or (b) any of the relevant requirements have not been complied with and in consequence, the interests of the applicant have been substantially prejudiced.
The general principles of judicial review are applicable to a challenge under section 288 TCPA 1990. Thus, the Claimants must establish that the Secretary of State misdirected himself in law or acted irrationally or failed to have regard to relevant considerations or that there was some procedural impropriety.
The exercise of planning judgment and the weighing of the various issues are matters for the decision-maker and not for the Court: Seddon Properties v Secretary of State for the Environment (1978) 42 P & CR 26. As Sullivan J. said in Newsmith v Secretary of State for the Environment, Transport and the Regions [2001] EWHC Admin 74, at [6]:
"An application under section 288 is not an opportunity for a review of the planning merits of an Inspector's decision."
The determination of an application for planning permission is to be made in accordance with the development plan, unless material considerations indicate otherwise: section 38(6) of the Planning and Compulsory Purchase Act 2004, read together with section 70(2) TCPA 1990. The NPPF is a material consideration for these purposes.
An Inspector's decision letter must be read (1) fairly and in good faith, and as a whole; (2) in a straightforward down-to-earth manner, without excessive legalism or criticism; (3) as if by a well-informed reader who understands the principal controversial issues in the case: see Lord Bridge in South Lakeland v Secretary of State for the Environment [1992] 2 AC 141, at 148G-H; Sir Thomas Bingham MR in Clarke Homes v Secretary of State for the Environment (1993) 66 P & CR 263, at 271; Seddon Properties v Secretary of State for the Environment (1981) 42 P & CR 26, at 28; and South Somerset District Council v Secretary of State for the Environment (1993) 66 P & CR 83.
Ground 1: Vibration
The First Claimant operates an international high technology business, including testing of bespoke computer programmes intended to ensure the safety of both civil and military aircraft. The equipment used for this is highly sensitive. The evidence of Dr Hennell was that the vibration generated by the proposed development, particularly during the...
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