R (Gazelle Properties Ltd) v Bath & North East Somerset Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lindblom |
| Judgment Date | 03 December 2010 |
| Neutral Citation | [2009] EWHC 3083 (Admin),[2010] EWHC 3127 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 December 2010 |
| Docket Number | Case No: CO/4717/2009,CO/123/2009; |
[2009] EWHC 3083 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: Mr C M G Ockelton (sitting As A Deputy High Court Judge)
CO/123/2009;
CO/4717/2009
Mr J Steel QC & Mr A Goodman appeared on behalf of the Claimant
Mr T Straker QC & Mr P Towler appeared on behalf of the Defendant
THE DEPUTY JUDGE: This is an application for permission to apply for judicial review of decisions taken by the defendant Council, Bath and North East Somerset Council. The applications were adjourned to an oral hearing by order of Sir Michael Harrison, sitting as a judge of this court, in July 2009.
There are three decisions under challenge in two separate applications: first, a decision on 29th October 2008 by the Council's Development Control Committee to delegate enforcement action in respect of planning matters to officers; second, a decision on 18th February 2009 again to delegate the taking of enforcement action to officers; third, a decision of 23rd February 2009 by an officer to issue an enforcement notice.
The application relates to a site on the Roman Road at the south west of Bath city centre almost immediately outside the area preserved in various ways as a European heritage site and with other classifications as well. Close to the city there is a Park and Ride car park. There is then a small field occupied, so far as I am aware, for agricultural purposes. The next thing moving outwards is the site. The site is of a long triangular shape, but it forms, so far as these proceedings are concerned, two discrete areas. The first, which I will call “the hatched area”, is the square, or roughly rectangular, part at the north eastern end of the triangle. The rest of the triangle is the area which is unhatched. By “hatched” and “unhatched” I am referring to the way in which the two areas are treated on one of the plans which has been produced for the purposes of these proceedings.
The hatched area extends to about 3.38 hectares and has been the subject of a considerable planning history. There have been activities on the hatched area for a considerable period of time, but there has never been planning permission because it is said that the activities pre-date the need for such permission. There have been various investigations and reports in relation to it, including a conclusion of an inspector in or about 2002 that the hatched area had been used for B2 (that is to say general industrial) purposes for a sufficient period of time to make the use lawful, and subsequently opinions expressed by counsel instructed by the Council and by an ombudsman, as well as by the Council itself, that the hatched area had the advantage of that use. Thus, a starting point —by no means the only, or perhaps not the most important starting point —for any further consideration of the site as a whole was that the Council's position had been, and so far as anybody knew continued to be, that the hatched area could lawfully be used for B2 activity.
Following a history of investigation and negotiation, and avowedly following the ombudsman's report which resulted from complaints both by the claimant and by members of the public in relation to the use of the site, the Council considered whether to issue enforcement notices in relation to alleged breaches of planning control in relation to the whole of the site. It is the resulting decisions which form the basis of these proceedings.
A number of issues have been raised. I begin by looking at the substantive complaint which is made Mr Steel on behalf of the claimant. The substantive complaint is this. Section 172(1) of the Town and Country Planning Act 1990 provides that an enforcement notice may be issued by the local planning authority where it appears to them “(a) that there has been a breach of planning control and (b) that it is expedient to issue the notice having regard to the provisions of the development plan and to any other material considerations”. That provision, on its face, appears to provide for a discretion, and if there were any doubt about it, Planning Policy Guidance 18, which is also embodied in the Council's own planning policy, indicates that the discretion is a real one, that is to say that there should be substantive consideration of whether the matter is one for enforcement notice or whether other means, for example negotiation, discussion, or application, are appropriate for dealing with the problem as the Council sees it.
The committee of the Council which made the decision to delegate enforcement action to the officers had before it, as is usual, reports prepared by officers relating to the situation on the site. Those reports indicated officers' views on a number of issues dealing with the site, that is to say the triangle, as a whole. There appears to have been concern that, whatever the lawful position in relation to the hatched area, there had been development and unlawful use in the rest of the triangular site.
The committee was told of new evidence available to the officers which suggested that the hatched area had not, in truth, been used for general industrial purposes for the requisite period as observed by the inspector and the ombudsman. The committee was invited to make a decision in principle, that is to say delegating enforcement to the officers, and did so on the first of the dates that I mentioned, that is to say 29th October 2008.
The objection raised by Mr Steel is that the discretion to be exercised by the Council in making that decision was a discretion which was exercised in a way which is amenable to challenge on ordinary public law grounds; that is to say that the committee did not have it before it all relevant material enabling it to exercise the discretion. In particular, the committee was not clearly informed that the hatched area had been recognised by the Council, both internally and publicly, as having a lawful B2 use. There had been considerable doubts about the extent of the indication as to that given by the inspector, but the position does appear to have been that immediately before the time of the report the whole of the hatched area was regarded as having lawful B2 use.
The decision on 29th October 2008 was that the lawful B2 use was confined to a part of the site smaller than the hatched area, and marked “A” on a plan appended to the report for that meeting. Although the committee was clearly told about the concerns that existed in relation to the rest of the hatched area, which appears to be that marked “E” on the CLEU plan, it does not appear that the committee was ever clearly told that it would be going back on a decision which had apparently been taken on the authority of counsel as well as public indications that the hatched area as a whole had lawful authority for B2 use.
That feature of the decision making process was, in Mr Steel's submission, a continued feature of the second decision made on 18th February 2009. There was an entirely new report at that stage and it is clear, as Mr Straker pointed out in an intervention in Mr Steel's closing submissions, that at that stage the committee had a list of important documents relating to the planning history of the site, which included the ombudsman's report and counsel's opinions. But Mr Steel's position is that the committee needed to have the information as a whole not in order to decide whether there had been a breach, but in order to decide whether, in the circumstances of this case, enforcement was the appropriate form of process at that particular stage in the history of this site. That particular stage was a stage which, so far, was a public recognition by the Council of B2 use for the whole of the hatched area.
That then is the substantive challenge to the Council's decision to delegate which is made on behalf of the claimants by Mr Steel.
The response to it by Mr Straker on behalf of the defendant is, firstly, that everything that the committee needed to know was put before it. He refers not only to that list, but to the report in detail. He points out that the committee was entitled to act on the views of its officers, and the view of its officer was that there had been breaches extending to the whole of the site other than the smaller part marked “A” in the map attached to the report. The committee was entitled to decide that enforcement should take place and was entitled to delegate. Mr Straker also points out that the delegation decision itself did not produce the enforcement notices, and there was a separate decision in due course taken by an officer to issue the enforcement notices for reasons given in the notices.
It seems to me arguable that on the facts of this case the committee did not have a clear impression before it of the action it was being asked to take on behalf of the defendant; that is to say to withdraw a previously declared view on the lawful use of this site and replace it by a different view. It seems to me also that it is arguable that the decisions by the Council of 29th October 2008 and 18th February 2009 were both not merely decisions that others would make decisions, they were decisions in principle to proceed to, or at any rate to proceed closer to, enforcement. So far as the substantive issue is concerned, the matters are, in my view, arguable.
That, however, is very far from the end of the matter. Section 285 of the Act provides that there shall be no challenge against the...
To continue reading
Request your trial
-
Friends of the Earth Limited’s Application
...Council [2009] Env LR 34; Perry v Stanborough Limited [1978] JPL 36; and Gazelle Properties v Bath and North East Somerset Council [2010] EWHC 3127 Admin. The essence of the test appears to be the authority’s view of the balance of the advantage or disadvantage in issuing a Stop Notice and ......
-
R Matthews v Secretary of State for Communities and Local Government
...lawfulness of any such considerations is a matter for the court. In addition to Britannia Assets, she relied on Gazelle Properties Ltd v Bath and North East Somerset Council [2010] EWHC 3127 (Admin) and Secretary of State for the Environment, Transport and the Regions v Wyatt Brothers (Oxfo......
-
The Queen (on the application of Gazelle Properties Ltd) v Secretary of State for Communities and Local Government Bath and North East Somerset Council and Others (Interested Parties)
...was challenged by a claim for judicial review, which I upheld in part on 3 December 2010 ( Gazelle Properties Ltd. and Sustainable Environmental Services Ltd. v Bath and North East Somerset Council [2010] EWHC 3127 (Admin)). 13 The first of the three enforcement notices issued by the Counci......
-
Britannia Assets (UK) Ltd v Secretary of State for Communities & Local Government and Another (First Respondent Second Respondent)
...read in conjunction with section 176 of the Act. This conclusion is consistent with the recent decision in Gazelle Properties Ltd & Another v Bath & North East Somerset Council [2010] EWHC 3127 (Admin). At paragraph 55 of his judgment Lindblom J said this:— "…section 285 leaves for the cour......
-
Table of Cases
...59 P & CR 124, [1988] JPL 596 466 Gayford v Moffatt (1868) 4 Ch App 133 16 Gazelle Properties Ltd v Bath and NE Somerset Council [2010] EWHC 3127 (Admin), [2011] JPL 702, [2010] 50 EG 62 (CS) 497 Gee v National Trust for Places of Historic Interest or Natural Beauty [1966] 1 WLR 170, 10......