R David William Daniel v (1) East Devon District Council (2) Brent Hushon (Interested Party)
| Jurisdiction | England & Wales |
| Judge | HHJ Birtles |
| Judgment Date | 20 December 2013 |
| Neutral Citation | [2013] EWHC 4114 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No: CO/9096/2012 |
| Date | 20 December 2013 |
[2013] EWHC 4114 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
HHJ Birtles
Claim No: CO/9096/2012
Mr Wayne Beglan (instructed by Stephens Scown Solicitors) for the Claimant
Mr Stephen Whale (instructed by East Devon District Council) for the Defendant
Hearing dates: 8 November 2013
Approved Judgment
Introduction
This is a claim for judicial review seeking to quash a planning permission granted by the Defendant in relation to land owned by the Interested Party dated 18 June 2012.
The Claimant is represented by Mr Wayne Beglan of counsel. The Defendant is represented by Mr Stephen Whale of counsel. I am grateful to both counsel for their written and oral arguments. The third party has taken no active part in the claim.
I heard the claim on 8 November 2013. At the conclusion of the hearing I reserved judgment.
The factual background
This claim concerns the grant of planning permission under reference 12/0883/VAR for the variation of approved plans (under condition 7 of permission 08/2537/FUL — Demolition of existing cafe/store and construction of new café/restaurant facility) proposing reduced building footprint and retention of shelter at Longboat Cafe, Marine Parade, Budleigh Salterton, Devon EX9 6NS ("the 2012 Permission"). The 2012 Permission was granted on 18 June 2012.
The site has a planning history. In 2008 the Interested Party submitted an application to the Defendant for the demolition of the existing cafe/store and for the construction of a new cafe/restaurant facility ("the 2008 Application"). The 2008 Application was dealt with by the Defendant under reference 08/2537/FUL.
The 2008 Application resulted in the Defendant granting the 2010 Permission. That permission has not been fully implemented. It was not possible for the scheme approved by the 2010 permission to be completely carried out because it involved development taking place on land not within the ownership or control of the Interested Party and the Interested Party has not been able to acquire that land or secure the consent of the landowners.
Faced with the impossibility of carrying out the development approved by the 2010 Permission the Interested Party applied in late 2011 for planning permission for an alternative scheme which was described as the demolition of existing cafe and construction of a new cafe facility ("the 2011 Application"). The 2011 Application was dealt with by the Defendant under reference 11/2764/FUL.
The 2011 Application resulted in the Defendant refusing planning permission on 14 February 2012 ("the 2012 Refusal"). The 2011 Application was refused for the following reason:-
"1. The proposed development by reason of the building's scale and height represents an over development of the site which combined with its design and pallet of materials would cumulatively harm the character of the area and the setting of the Conservation Area, Coastal Preservation Area and World Heritage Coast. The proposed development is therefore considered contrary to guidance in PPS1 (delivering sustainable development), PPS5 (Planning for the Historic Environment and Circular 07/09 (Protection of World Heritage Sites), Policies C05 (Coastal Preservation Areas), CO6 (quality of new development), and CO7 (historic settlements and buildings) of the Devon Structure Plan, Policies D1 (design and local distinctiveness) and EN11 (preservation and enhancement of conservation areas) of the adopted East Devon Local Plan and guidance contained within the Budleigh Salterton Design Statement.)"
The Interested Party did not appeal against the 2012 Refusal.
On 16 February 2012 the Interested Party made an application pursuant to section 96A of the Town and Country Planning Act 1990 ("the section 96A Application") to add an additional condition to the 2010 Permission reciting the approved plans.
The section 96A Application was dealt with by the Defendant in February-March 2012 and resulted in the Defendant adding an additional condition ("the Additional Condition") to the 2010 Permission as condition 7 which required the permitted development to be carried out in accordance with a series of plans which were then listed.
Having secured the imposition of the Additional Condition the Interested Party subsequently made an application to the Defendant pursuant to section 73 of the Town and Country Planning Act 1990 for the variation of condition 7 ("section 73 Application").
The section 73 Application was dealt with by the Defendant under reference 12/0883/VAR and resulted in the Defendant granting a new planning permission on 18 June 2012 i.e. the 2012 Permission. The proposal being described as:
"Variation of approved plans (under condition 7 of permission 08/2537/FUL — demolition of existing cafe/store and construction new cafe/restaurant facility) proposing reduced building footprint and retention of shelter."
The legal background
In determining a planning application the general duty laid upon a planning authority is found in section 70(2) of the 1990 Act which provides that:
"In dealing with such an application the authority shall have regard to the provisions of the development plan, so far as is material to the application, and to any other material considerations."
Section 38(6) of the Planning and Compulsory Purchase Act 2004 provides as follows:
"If regard is to be had to the development plan for the purposes of any determination to be made under the planning Acts the determination must be made in accordance with the plan unless material considerations indicate otherwise."
Section 73 of the 1990 Act provides:
"73-(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local authority shall consider only the question of the conditions subject to which planning permission should be granted and —
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application.
(3) Special provision may be made with respect to such applications —
(a by regulations under section 72 as regards the form and content of the application and
(b)by development orders regards the procedure to be followed in connection with the application.
(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it relates has to be begun and that time has expired without the development having been begun.
(5) Planning permission must not be granted under this section to the extent that it has effect to change a condition subject to which a previous planning permission was granted by extending the time within which —
(a) a development must be started;
(b) an application for approval of reserve matters (within the meaning of section 92) must be made."
A decision-maker must have regard to all legally relevant considerations in reaching his decision: R (Alconbury Developments Limited) v. SoSETR [2003] 2 AC 295 at paragraph 50 per Lord Slynn.
A failure to take into account a matter which the decision-maker is bound to consider is capable of being of analysed as a traditional public law ground of challenge as constituting unreasonableness: Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1 KB 223 at 229 per Lord Grene MR.
The materiality of an earlier decision on a similar application to a consideration of a later application is well-established: Havard v. South Kesteven District Council [2006] EWHC 1273 (Admin) paragraph 12.
This claim concerns criticisms of officer advice to members in a report, as to which the leading authorities are R v. Poole Borough Council ex parte Beebee [1991] JPL 643 and Oxton Farms v. Selby District Council [1997] EWCA Civ 4004. The former case makes the point that officer's reports are not to be read as though they were taxation statutes to be carefully construed, and that local authority officers who draft those reports are not by training or inclination in general endowed with the...
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