R (Jones and Another) v North Warwickshire Borough Council

JurisdictionEngland & Wales
JudgeLORD JUSTICE ALDOUS,LORD JUSTICE LAWS,MR JUSTICE BLACKBURNE
Judgment Date01 March 2001
Neutral Citation[2001] EWCA Civ 315
CourtCourt of Appeal (Civil Division)
Docket NumberC/2000/3164
Date01 March 2001

[2001] EWCA Civ 315

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(His Honour Judge Rich

(sitting as a deputy High Court judge))

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Aldous

Lord Justice Laws

Mr Justice Blackburne

C/2000/3164

The Queen On The Application Of
Scott Jones (by His Litigation Friend (vicky Jones)
Claimants
and
Thomas Howe (by His Litigation Friend Lynn Howe)
Respondents
and
North Warwickshire Borough Council
Defendant/Appellant

MR T JONES (Instructed by Legal Services, North Warwickshire Borough Council, Atherstone CV9 1BD) appeared on behalf of the Appellant

MR T CORNER (Instructed by Public Interest Lawyers, Birmingham B28 9HH) appeared on behalf of the Respondents

LORD JUSTICE ALDOUS
1

I will ask Lord Justice Laws to give the first judgment.

LORD JUSTICE LAWS
2

Before us there are two appeals arising out of a judgment given by His Honour Judge Rich QC sitting as a deputy judge of the Queen's Bench on 19th September 2000. The judge acceded to the claimants' application for an order of certiorari to quash the grant of a planning permission by the respondent council, but declined to order the council to pay their costs.

3

Simon Brown LJ granted permission to appeal in respect of the judge's substantive decision on 28th November 2000, and on 23rd January 2001 granted permission to appeal to the claimants in respect of the decision on costs.

4

As of this moment we have only heard argument upon the first appeal and I now give my judgment upon it.

5

The application site for the purposes of the relevant planning permission is known as The Green, Kingsbury at Tamworth in Staffordshire. It is open land said to be about the size of a football pitch, or possibly a modest football pitch, and it belongs to the council. It was not subject to any designation in the development plan. As the judge noted, the development plan included it in an area where development was in principle acceptable and there was no policy against it.

6

The claimants are two children who regularly play on the site. They live within 10 metres of the site. They brought these proceedings via their mothers as litigation friend in each case. It is said that local children have played on the site for many years and about thirty do so as at the present time.

7

On 6th September 1999 the council's Housing Services Committee selected this site as apt for the construction of eight two-bedroom bungalows intended as affordable housing for elderly persons to be built by the Waterloo Housing Association. On 5th October 1999 that association applied for planning permission to erect the bungalows and to demolish four existing bungalows which adjoined The Green. The association had previously had in mind to carry out this bungalow development on a different site also owned by the council. That was a car park area at Coventry Road, Kingsbury. The council had looked at this site and others before its committee selected the application site as apt for the development.

8

As I understand it, because of objections raised by local residents in relation to the Coventry Road site the housing association did not carry forward the proposal to build there to the point of seeking planning permission.

9

On 13th October 1999 the council wrote to local residents (including the claimants' mothers) indicating that the application had been received, attaching a plan and inviting representations in time for the Planning and Development Committee's meeting, then scheduled for 9th November 1999 when the planning officer would report the application, and preferably before 29th August 1999. 10. The council wrote again to residents on 2nd November 1999 indicating that the application would in fact be reported to the committee on 7th December 1999 and stating:

"You may attend but will not be able to speak."

11

Accordingly one of the claimants' mothers, Miss Jones, made written representations in a letter dated 7th December 1999 which she faxed to the council on that day. At the end of her letter she said this:

"Whilst I would agree there is a need for this type of dwelling, I feel that the plan originally proposed, building on Coventry Road, was far more suitable, not just for those reasons already outlined, but the Coventry Road site is near to the doctors, the chemists, the shops, the bus stop, etc. I also understand that the local resident objection was far less than has been demonstrated for The Green.

In all, I feel there is a strong argument to deny this planning permission and for the Council to once again look at the Coventry Road site."

12

This letter was before the committee on 7th December 1999. They had a report from the chief planning officer which recommended the grant of permission provided there were no objections from the highway authority that could not be covered by condition. There was no mention in the report of any possibility that the development could be carried out at the Coventry Road site or any other site.

13

Miss Jones attended the meeting on 7th December 1999 and made a note of the proceedings. As I understand it the accuracy of her note is not challenged, although of course it is not put forward as a complete record. It contains this short passage:

"One Councillor then said, although he knew he should not bring [it] up, that there had been another site considered, but because of a number of objections from that site, the Committee had gone for another site, which is why this site (The Green) had been chosen. The Chairman agreed that it should not have been introduced into this meeting."

14

The reference there must be to the subject matter of the alternative site which is plainly Coventry Road.

15

The claimants rely on this material as apparently indicating that the committee's view was that they were not entitled to consider the Coventry Road site in the course of their deliberations upon the application. Mr Jones, for the council, appearing before us today accepts that it is right to proceed on the basis that the committee took the view that they were disabled from or not entitled to consider the Coventry Road site.

16

At length the committee resolved in accordance with the planning officer's report and on 22nd December 1999 the full council granted planning permission subject to conditions. That was the subject of the judicial review before His Honour Judge Rich. Permission to seek judicial review had been granted by Elias J on 22nd May 2000 after an oral hearing.

17

The claimants' case is put in two ways, as it was in the court below. First, it is said that the availability of the other site at Coventry Road was a material consideration which the council were obliged to take into account. In the alternative it is said that the council should at least have considered whether to take it into account; that is, it was a mistake of law on their part to go on the basis that they were not entitled at all to have regard to it.

18

I shall start where the judge started, with the relevant provisions of the governing statute. The judge introduced them thus:

"9. By section 70 of the Town and Country Planning Act of 1990 the local planning authority in dealing with an application for planning permission:

' .shall have regard to the provisions of the development plan, so far as material to the application, and to any other material considerations.'

10. Thus if there is a material...

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