R Hewitson v Guildford Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeTHE DEPUTY JUDGE
Judgment Date14 Oct 2011
Neutral Citation[2011] EWHC 3440 (Admin)
Docket NumberCO/10214/2010; CO/6874/2011

[2011] EWHC 3440 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Her Honour Judge Robinson

(Sitting as a Deputy High Court Judge)

CO/10214/2010; CO/6874/2011

Between:
The Queen on the application of Hewitson
Claimant
and
Guildford Borough Council
Defendant

Mr R Turney (instructed by KINGSLEY SMITH) appeared on behalf of the Claimant

Mr A Booth (Mr R Honey for Judgment) (instructed by SHARPE PRITCHARD) appeared on behalf of the Defendant

THE DEPUTY JUDGE
1

These are two applications for judicial review of two planning permissions dated 30 June 2010 and 27 April 2011. Those planning permissions relate to land at 3 Pilgrim's Way, Guildford, owned by the interested party. The claimant lives next door at 3A Pilgrim's Way. The development to which the planning permissions relate is almost identical, the minor difference is not material for the purposes of these proceedings. The development is for first of all a two storey side extension on the side of the house which is adjacent to the claimant's property and secondly a part two/part single storey rear extension and garage on the other side of 3 Pilgrim's Way from the claimant's property. The two story side extension on the side adjacent to the claimant's property would be 2.3 metres deeper than the existing dwelling, but because of the siting of the claimant's house would project beyond the rear elevation of the claimant's house by at least 3 metres; it would be about 1.3 to 1.7 metres away from the shared boundary. As a result the claimant objected to the development proposals on a number of grounds. I will come back to those in due course.

2

Following a meeting of the defendant council's planning committee on 29 June 2010, as I have already said permission was granted on 30 June. That permission was challenged in the first of these proceedings and permission was granted on the papers on 30 September 2010. The single ground of challenge relates to the procedure which was adopted at the meeting of the planning committee and the exercise of the chairman's casting vote.

3

As a result of the grant of permission in the first set of proceedings, the interested party put in a further application for planning permission for virtually the same development. That was considered by the authority and granted on 27 April 2011. As a result of that, the second judicial review proceedings were started. Permission was granted on the papers on 1 September 2011 in respect of ground one of four grounds of challenge and the claimant sought to renew the application for permission on grounds two and four.

4

I invited both parties to make all the submissions that they wanted to on both sets of proceedings—the substantive hearing and applications for permission—and indicated that I would deal with all the matters together.

THE FIRST PLANNING PERMISSION

5

I turn straight away, therefore, to the first planning permission. The single ground of challenge is this. At the meeting of the planning committee on 29 June 2010 there was a vote on a motion to refuse planning permission, which resulted in a tie. The Chairman had voted in favour of the motion to refuse planning permission. After the vote was tied the chairman of the committee sought advice from the defendant's solicitor as to what do in those circumstances and he was given advice, the precise terms of which was in dispute, but it included that there was a convention that the casting vote was used in accordance with the recommendation in the officer's report, which was in this case to grant planning permission. Immediately after receiving that advice that the chairman exercised his casting vote against the motion, in other words in favour of the development. The motion to refuse, therefore, failed and a motion to grant was immediately proposed and passed. The claimant says that the advice given was unlawful and the misdirection unlawfully fettered the exercise of the chairman's discretion and he should have voted in accordance with his own opinion of the planning merits.

6

In addition it is submitted that as a result the chairman of the committee failed to have regard to a material consideration, namely the planning merits of the proposal. Reliance is placed on the decision in R v Bradford City Metropolitan Council, ex parte Corris [1990] 2 QB 363 where Neill LJ said, at page 371:

"a person who has a second or casting vote is clearly under a duty to exercise it honestly and in accordance with what he believes to be the best interests of those who may be affected by the vote. Subject to this, however, it seems to me that the person presiding at a meeting is fully entitled to use his vote as he sees fit."

There is no dispute on behalf of the defendant that that is the applicable law.

The evidence

7

In order to deal with this argument it is necessary to consider the evidence as to what happened. Witness statements have been filed on behalf of a number of councillors, as well as a council solicitor at the meeting, Mr Roberts. There are a number of disputes as to precisely in what order votes were taken and what the chairman of the committee voted for and how often he voted. It is not necessary for me to resolve those for the purposes of this claim. The key facts which are not in dispute are: (1) the chairman, Councillor Garrett, first voted to refuse planning permission, (2) Mr Roberts gave him certain advice which included reminding him of the convention that the casting vote is cast in accordance with the officer's recommendation and (3) that immediately thereafter Councillor Garrett voted in favour of granting planning permission. This is the evidence of claimant, Councillor White, Councillor Di Caprio, Councillor Furniss and, largely, Councillor Garrett. Although he could not remember having been reminded of the convention, he said he was well aware of it in any event. There is a dispute as to what precisely Mr Roberts told Councillor Garrett and in particular a number of witnesses say that in addition to reminding Councillor Garrett of the convention, Mr Roberts also told him that he should decide the case on its merits.

8

The evidence of the witnesses is as follows. Councillor De Caprio and Councillor White say Councillor Garrett was informed of the convention but there was no reference to considering the planning merits. Councillor Furniss states that Councillor Garrett was informed of the convention but told he should cast his vote in accordance with the merits of the application. Councillor Garrett said, as I have already indicated, he does not recall being told of the convention, although he was aware of it any event, but part of what Mr Roberts told him is that he should cast his vote as he saw fit based on the merits of the application. Mr Roberts' evidence is that he informed the chairman of the convention, but said that "you must vote as you see fit on the merits." I pause there to say that Mr Roberts did not, in his witness statement, say that he told Councillor Garrett to vote as he saw fit on the planning merits.

9

The procedure was this. There was a vote on a show of hands. Those were counted by Mr Roberts and the vote announced. Councillor Garrett then consulted Mr Roberts. Following that advice Councillor Garrett exercised his casting vote and Councillor Garrett describes the time lapse between the beginning and end of those events as "a short while."

10

After the meeting the claimant wrote to the council on 5 July and complained, amongst other things that:

"We do not understand why the chairman of the meeting, Councillor Garrett, was told by council officers that he had to apply his casting vote at the meeting in the same way as the recommendation in the officer's report."

The same point is repeated in subsequent letters.

11

In the council's first reply to the complaints made on behalf of the claimant the head of planning services says, in a letter dated 19 July:

"As you are aware, the vote on this application was tied with the same number of councillors in support of the application as against. It was therefore for the chairman to apply his casting vote in order to determine the application. I would like to clarify that the chairman does not have to vote in the same way as the recommendation in the officer's report and was not instructed to do so during the meeting. Councillor Garrett was instructed that he would have to use his casting vote, but ultimately it was for him to decide how to vote on this proposal."

12

The claimant persisted in his complaints and in the next letter from the council, which is dated 13 August 2010, the strategic director says:

"I have spoken to the solicitor at the planning meeting on 29 June who confirms that whilst he reminded the chairman of the convention he also told him that he should consider the merits of the planning case and vote accordingly. There have been a number of cases where the chairman has not followed the convention but voted against the officer recommendation. In this case the vice-chairman chaired the meeting chose to vote in favour of the officer's recommendation."

13

In reply to that, on 17 August 2010 the claimant said:

"The chairman was told by Council officers at the meeting that the convention was for the chairman to apply his casting vote to approve the planning officer's recommendation. However, we do not agree with [the strategic director] (who was not present at the meeting) that he was told that he should consider the merits of the planning case. Instead, as indicated in the attached comments by Councillor Di Caprio who was present,...

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    ...330; [2000] 3 W.L.R. 463. R. v. Lord Chancellor, Ex p. Law Society (No. 2) (1994) 6 Admin L.R. 833. R. (Hewitson) v. Guildford B.C. [2011] EWHC 3440 (Admin), [2012] B.L.G.R. 637. R. v. Secretary of State, ex p. Lancashire C.C. [1994] 4 All E.R. 165; (1994) 138 S.J.L.B. 53. R. v. Snaresbrook......

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