R (Corus UK Ltd t/a Orb Electrical Steels) v Newport City Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams,MR JUSTICE WYN WILLIAMS |
| Judgment Date | 09 June 2010 |
| Neutral Citation | [2010] EWHC 1279 (Admin),[2010] EWHC 1596 (Admin) |
| Docket Number | Case No: CO/2417/2010,CO/2417/2010 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 June 2010 |
[2010] EWHC 1279 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
AT CARDIFF
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/2417/2010
Richard Harwood (instructed by DLA Piper UK LLP) for the Claimant
Ian Albutt (instructed by Defendant's Legal Department) for the Defendant
Hearing date: 5 May 2010
Introduction
The Defendant is the owner of an area of land known as Plot 4B Esperanto Way in the city of Newport (hereinafter referred to where appropriate as "the site"). On 5 November 2009 the Estates Department of the Defendant applied to the Defendant as local planning authority for planning permission to change the use of the site. The change sought was to use the site for a temporary period of 2 years as a gypsy traveller site for one family. Additionally the Estates Department sought permission to erect steel gates at the perimeter of the site and a bin store within it.
The application was considered at an extra meeting of the Defendant's Planning Committee on 16 December 2009. At the conclusion of the meeting the members present, 8 in total, were split 4/4 as to whether planning permission should be granted. The deadlock was broken by the Chair of the Committee who voted in favour of granting permission. On the same day the Defendant granted planning permission for the change of use sought and the erection of the gates and the bin store. The permission was granted subject to eight conditions.
The Claimant owns and occupies land adjoining the site. On 19 February 2010 it issued these proceedings in which it seeks an order quashing the planning permission granted by the Defendant. It relies on no less than 11 grounds of challenge.
Following the grant of planning permission the site was occupied by an extended family (the Hendry family) which it is accepted is properly described as a gypsy family. The probability is that the family began its occupation of the site on or about 23 December 2009.
The Claimant's application for permission to apply for judicial review was considered by HHJ Vosper QC sitting as a Judge of the High Court on 25 March 2010. The judge directed that the application for permission should be listed in court to be followed, immediately, by the substantive hearing should permission be granted. The judge observed:—
"The decision of the Defendant to grant itself planning permission for use of this site as temporary accommodation by the Hendry family while at the same time recognising that it may have to serve notices on the Claimant and other neighbouring industrial occupiers in respect of use of their land which conflicts with a family's residential use, may be amenable to J R.
However, the family has taken up occupation and it may be that this application is now too late. There is at present insufficient information to refuse permission for this reason alone."
I have reached the clear conclusion that permission should be granted in this case. What follows, therefore, is my judgment on the substantive claim. I should say now, however, that I will also explain later in this judgment why I have decided to grant permission in the face of the Defendant's complaint that the proceedings were not instituted "promptly".
The Facts
Until the events which I shall describe in the paragraphs which follow, the site was an area of open land adjacent to the tidal river Usk. It had been fenced off by the Defendant and was proposed as a site for industrial development. As of the autumn of 2009 the site was empty.
The Claimant owns and operates factory premises at land known as the Orb Works which is in Stephenson Street Newport; as I have said the Claimant's land adjoins the site. There are other sites in Esperanto Way which are occupied; in particular, there are premises which are used as a bakery, a waste recycling operation, for the manufacture of windows and for printing.
The site is reasonably close to the Newport Transporter Bridge which carries vehicles and pedestrians on a gondola suspended by cables from a high level gantry which spans the river Usk. By the latter part of 2009, at the latest, the Defendant had decided to carry out works to the bridge and intended to commence those works in January 2010.
There was an impediment to the Defendant's plan; the Hendry family had set up camp in close proximity to the bridge. Their presence near the bridge prevented the carrying out of the works. It became an urgent necessity for the Defendant to persuade the Hendry family to move so that the works to the bridge could commence on time. With that in mind the Defendant served a notice upon the Hendry family requiring that they leave the area upon which they were camped by 1 November 2009.
As will become apparent, the Claimant attaches considerable importance to some of the events which occurred prior to the making of the planning application and, further some of the events which occurred between the making of the application and the grant of planning permission. It is to this aspect of the relevant history to which I next turn.
Following the service of the notice to vacate upon the Hendry family it was immediately recognised by the Defendant that it would be difficult to enforce the notice without there being alternative arrangements suggested to the family. The Hendry family had longstanding links with Newport and a number of the children attended local schools. To repeat, therefore, the Defendant's officers were conscious that it was necessary to attempt to find a suitable alternative site for the Hendry family to occupy.
By the beginning of October 2009 the search for such a site was intensifying. On 6 October 2009 Ms Sally Davies, an employee within the Housing Department of the Defendant, sent an email to a number of colleagues in different departments suggesting that the Hendry family might be relocated at a site at Hartridge Farm Road, Newport. That site was quickly discounted as a possible site for the relocation; however, by the afternoon of 7 October 2009 the site at Esperanto Way had been identified as a real possibility. On that afternoon Michelle Lewis, the Defendant's Housing Strategy Officer, emailed three colleagues to say:—
"Sally and I visited this site today and confirm it does comply with WAG Guidance on the provision of temporary sites. We also spoke with Mrs Hendry who stated that the family would be happy to move on to the site should it be made available. I have attached the site assessment pro forma."
It is worth noting that even by this date it was recognised by the Defendant's officers that what were described as minor works would be necessary on the site. Indeed, the "pro forma" mentioned in the email suggested in terms that "work would need to be undertaken to clear the site."
By 12 October 2009 representatives of the Defendant's Planning Department were involved in discussions and email correspondence about the relocation of the Hendry family to the site. So much is clear from an email from Mr Neil Gunter (an employee of the Planning Department) and the handwritten notes made thereupon. At some stage on 12 October 2009 or shortly thereafter advice was received from Brian Kemp, an employee of the Highways & Engineering Department of the Defendant, that the site should be cleared if it was to be occupied by the Hendry family.
On 15 October 2009 an inter-departmental meeting took place at which the provision of both temporary and permanent sites for travellers was discussed. Further the persons present discussed the relocation of the Hendry family to the site. On that day Ms Lucie Taylor, the Planning Policy Liaison Officer of the Defendant, wrote in an email that the discussions at the meeting should be confidential "with the one aim of finding temporary sites for longstanding members of the Newport community".
On 21 October 2009 Ms Michelle Lewis sent an email to a number of employees of the Defendant in different departments. The relevant parts of the email read:—
"I have visited the site and conducted welfare checks. There are no immediate issues that would prevent the Hendry family moving by 1 st November, when the notice expires.
Highways are on site and have begun works to clear it. Before the Hendry family can move onto the site there are a number of issues that need to be addressed:
• The provision of water to the site;
• The provision of electricity to the site;
• An acceptable behaviour contract, or similar document, to cover their time on the site;
• The provision of refuse disposal facilities."
The email is significant since it records that work had begun on site and that active consideration was being given to the provision of services necessary for the use of the site for residential occupation by the Hendry family.
On 26 October 2009 Ms Sheila Davies circulated an email which is worth quoting in full. It reads:—
"I have Seve Davison with me at the moment, who has pointed out some procedural issues which could put the authority before the Ombudsman, in relation to our proposal to move the Hendrys.
a) We must proceed asap with a planning application for temporary use. Don please action.
b) We cannot move the family until we get consent.
c) We cannot run the risk of having Enforcement Notices served on "ourselves" if they move there beforehand.
d) We could consider the "pound" for the Transporter Bridge materials being temp located on Esperanto Way (which would explain the clearing work Highways are doing at the moment).
e) We could "swap" the pound site for the Gypsy Family site once planning consent is granted.
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