Medway Council v Secretary of State for Communities and Local Government Byrne Estates (Chatham) Ltd (First Interested Party) Chatham Quays Residential Ltd and Chatham Quays Commercial Ltd (Second and Third Interested Parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Gilbart |
| Judgment Date | 23 March 2016 |
| Neutral Citation | [2016] EWHC 644 (Admin) |
| Docket Number | Case Nos: CO/4954/2015 CO/699/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 March 2016 |
[2016] EWHC 644 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Gilbart
Case Nos: CO/4954/2015 CO/699/2016
and
and
Philip Coppel QC (instructed by Legal and Corporate Services, Medway Council) for the Claimant
Richard Turney (instructed by Trowers & Hamlins LLP) for the First Interested Party
The Defendant and the Second and Third Interested Parties did not appear and were not represented
Hearing dates: 10 th March 2016
This matter relates to a planning obligation made under section 106 of the Town and Country Planning Act 1990 (as amended) (" TCPA 1990"). One of its requirements related to affordable housing, as I shall set out below. That Act was amended in 2013 to include provisions dealing with the discharge of requirements relating to affordable housing, now found in sections 106BA-C of the Act in its amended form. This litigation concerns an application by a developer under section 106BA to modify the requirement so that a payment for the provision of affordable housing is deleted, and its succeeding in an appeal to the Defendant Secretary of State under section 106BC of the Act.
As far as Counsel were aware, this is the first occasion upon which the Courts have had to consider these provisions, and consider the route by which decisions by the Secretary of State can be challenged in the High Court. It is fair to say that the meaning of some parts of the legislation are not easy to understand, and I am grateful to counsel for their contributions to my education on the point. That process revealed some potential lacunae in the statutory code, which I shall refer to in due course.
I shall deal with the matter as follows
A. Procedural issues
B. The central issues for determination
C. The statutory and policy context, including the powers of the Secretary of State
D. The application in issue and the factual background
E. Conduct of the Appeal
F. The decision letter under challenge
G. The case for the Claimant authority
H. The position of the Defendant Secretary of State
I. The case for the First Interested Party
J. Discussion
K. Conclusions.
A PROCEDURAL ISSUES
As noted above, this application concerns a decision letter of a Planning Inspector of the Defendant Secretary of State issued on 8 th September 2015, on an appeal brought by the First Interested Party under section 106BC of the TCPA 1990 against the failure by the Claimant Council to determine that a planning obligation should be modified.
Given the fact that the decision by the Secretary of State was made by decision letter, it is perhaps understandable that the Claimant Council made its challenge under section 288 of TCPA 1990. However, such appeals are not among those orders or actions listed in s 284( 2) or (3) of the Act, and therefore do not fall within the purview of section 288, which only applies to the orders or actions so listed (see s 284(4)). By s 106BC (16) the Secretary of State's determination of an appeal under the section is final.
It follows that the only remedy for challenging such a decision is by way of judicial review, rather than the specialised route under s 288. That route contains more rigorous time limits for the making of applications for leave to make the application under s 288(4A) (the strict 6 week window), in contrast to the position in a judicial review challenge, where, while a 6 week time limit is specified in CPR 54.5, time can be extended. It is not clear whether the absence of s 106BC appeals from the list in s 284 (2) and (3) is a matter of choice by the legislature, or simply an omission. In reality in the vast majority of cases there will be little difference between the legal principles applying to the consideration of a decision letter in a Judicial Review context as opposed to a statutory review, save only for the different principles relating to the time for making applications. Even then, this Court would require much persuasion that a challenge to a decision letter could be made after a period of 6 weeks has elapsed.
The Claimant issued a claim under s 288 on 13 th October 2015, within 6 weeks of the date of the decision letter. The Claimant then came to appreciate that the appropriate route was by way of judicial review, and issued an application, with the consent of the Defendant, that the Part 8 application be treated as an application for judicial review. On 21 st December 2015 Lang J refused permission on the grounds that "the course of action proposed …..does not comply with the CPR or the statutory requirements." She did not specify the statutory requirements concerned, but indicated that if the Claimant wanted to apply for judicial review, it had to apply for it, including for an extension of time, and that it should be listed as a rolled up hearing with the s 288 application.
The Claimant applied for leave to appeal her Order. Before the decision of Lewison LJ to refuse leave (given in writing on 11 th February 2016) the Claimant had issued the current application to apply for Judicial Review, and for an extension of time, on 9 th February 2016.
Thus it is that the hearing on the 10 th March 2016 was a rolled up hearing, able to consider the judicial review application on the date originally fixed for the hearing of the s 288 application. It follows that the complexities of the procedural questions had produced not a single day's delay, and all parties had known of the Claimant's case since the 13 th October 2015. The Defendant had no objection to an extension of time, and after consideration at the hearing, the First Interested Party withdrew what had been an objection on this ground. This is thus an exceptional case where it is proper to extend the time for issuing the proceedings under CPR 54.4, and I do so.
It must not be thought that that amounts to a judicial view that applications to extend will be allowed as a matter of course. In future cases, if this judgement is reported, the absence of a statutory review route of challenge will be known to those considering the issuing of proceedings.
B THE CENTRAL ISSUES FOR DETERMINATION
The central issues for determination by this Court were
i) the meaning of the word "development" in s 106 BA(13):
ii) whether an application could be made after the housing element of the development permitted had been completed;
iii) whether the Inspector properly addressed the Claimant's argument that the relevant completion related to the housing development, and its argument that the whole development had in fact been completed.
Another issue ventilated before me was whether an application had to be made while the development to which the planning obligation related was still under way.
C THE STATUTORY AND POLICY CONTEXT, INCLUDING THE POWERS OF THE SECRETARY OF STATE
I start with Section 106BA of the Act as amended. It contains the following provisions of relevance:
"(1) This section applies in relation to an English planning obligation that contains an affordable housing requirement.
(2) A person against whom the affordable housing requirement is enforceable may apply to the appropriate authority—
(a) for the requirement to have effect subject to modifications,
(b) for the requirement to be replaced with a different affordable housing requirement,
(c) for the requirement to be removed from the planning obligation, or
(d) in a case where the planning obligation consists solely of one or more affordable housing requirements, for the planning obligation to be discharged.
(3) Where an application is made to an authority under subsection (2) and is the first such application in relation to the planning obligation—
(a) if the affordable housing requirement means that the development is not economically viable, the authority must deal with the application in accordance with subsection (5) so that the development becomes economically viable, or
(b) if paragraph (a) does not apply, the authority must determine that the affordable housing requirement is to continue to have effect without modification or replacement.
(4) Where an application is made to an authority under subsection (2) and is the second or a subsequent such application in relation to the planning obligation………… (not relevant here)
(5) The authority may—
(a) determine that the requirement is to have effect subject to modifications,
(b) determine that the requirement is to be replaced with a different affordable housing requirement,
(c) determine that the planning obligation is to be modified to remove the requirement, or
(d) where the planning obligation consists solely of one or more affordable housing requirements, determine that the planning obligation is to be discharged.
(6) A determination under subsection (5) (a), (b) or (c)—
(a) may provide for the planning obligation to be modified in accordance with the application or in some other way,
(b) may not have the effect that the obligation as modified is more onerous in its application to the applicant than in its unmodified form, and
(c) may not have the effect that an obligation is imposed on a person other than the applicant or that the obligation as modified is more onerous in its application to such a person than in its unmodified form.
(7) …………………………………………………………………………..
(8) In making a determination...
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