R (LING (BRIDLINGTON) Ltd and Others) v EAST RIDING of YORKSHIRE COUNCIL
| Jurisdiction | England & Wales |
| Judge | SIR MICHAEL HARRISON |
| Judgment Date | 01 June 2006 |
| Neutral Citation | [2006] EWHC 1604 (Admin) |
| Docket Number | CO/7150/2005 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 01 June 2006 |
[2006] EWHC 1604 (Admin)
IN THE HIGH COURT OF JUSTICE
THE ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Sir Michael Harrison
CO/7150/2005
MISS J WIGLEY (instructed by HAMMONDS) appeared on behalf of the CLAIMANT
MR S HOCKMAN QC & MISS M THOMAS (instructed by COUNCIL'S LEGAL DEPARTMENT) appeared on behalf of the DEFENDANT
MR M EDWARDS appeared on behalf of the INTERESTED PARTY
Introduction
This is an application for judicial review to quash two planning permissions and a resolution to grant a planning permission, all of which related to development on the seafront at Bridlington in the East Riding of Yorkshire. The first planning permission relates to the erection of a 34 metre high observation wheel ("the wheel permission"). The second planning permission relates to a change of use to a fun park and erection of a retaining wall ("the fun park permission"). The resolution to grant planning permission relates to the erection of a restaurant class 3, an arcade and a terrace area ("the arcade resolution").
The sites of all three proposed developments lie between the Royal Prince's Parade and the Esplanade to the north of the Floral Pavilion in an area generally devoted to leisure uses. The applicant for planning permission (the Interested Party in these proceedings) was Harrison Leisure Limited who own and control a number of leisure uses in the immediate area known as North Sands Fun Park. The four claimants also operate amusement arcades and leisure uses within the adjoining area. They also own some flats on the other side of the Esplanade, most of which are occupied by those involved with their businesses. The defendant is the planning authority for the area.
The Interested Party submitted the three planning applications in March 2005. The wheel application and the fun park application were first considered by the defendant at a meeting of the Northern Area Planning Sub-Committee on 18th April 2005, when the applications were deferred and delegated for approval subject to no objections raising new issues being received by the end of the consultation period. Following receipt of new issues being raised by objectors, including the claimants, the two applications were considered by the Eastern Planning Sub-Committee on 23rd May 2005 with an officer's recommendation for approval but they were again deferred, this time for a site visit.
At the same meeting, the third application, the arcade application, was considered for the first time with an officer's recommendation for deferral pending receipt of amendments to the roof of the building requested by the Conservation Officer and with a recommendation of approval subject to the amendments being satisfactory. At that meeting, that application was also deferred for a site visit.
At the site visit, members went into the home of one of the objectors to view the site of the wheel from a first floor window.
All three applications were then considered again by the Eastern Area Sub-Committee on 13th June 2005. On that occasion, the Sub-Committee resolved to approve the wheel application and the fun park application, subject to conditions, and to defer the arcade application for the submission of a satisfactory flood risk assessment and for the amendments requested by the Conservation Officer and to delegate the application for approval subject to receipt of those items.
On 28th June 2005 the defendant issued the planning permissions for the wheel application and for the fun park application. No decision notice has yet been issued in respect of the arcade application.
A number of different points have been taken by the claimants relating to each of the three decisions. It will be necessary to refer to the officer's reports relating to each decision.
The wheel permission
a) introduction
I start by dealing with the wheel permission. The proposed observation wheel would be a substantial structure, 34 metres high. One of the objections raised was alleged overlooking of the nearby residential properties on the other side of the Esplanade from the gondolas or passenger carriages.
The officer's report of 18th April 2005 identified the key issues as the impact on the appearance of the area and the impact on the amenities of neighbouring occupants. Under the heading "Impact on the Character and Appearance of the Area and Residential Amenity", the officers stated:
"The observation wheel would be located at a distance of at least 30m from the front elevations of properties on The Esplanade. The appearance of the wheel is considered acceptable, subject to conditions to control materials, colours and a scheme of lighting. The distance of the wheel from nearby flats is such that there should be no harmful overlooking. Conditions should be attached to control the impact of lighting and to ensure that noise levels are not higher than the existing background noise."
In the paragraph headed "Conclusion", it was stated that the proposal was considered to accord with the relevant local and national planning policy and to be acceptable subject to the conditions set out at the end of the report which did not include a condition relating to privacy of the occupiers of nearby properties. That aspect was not considered further in the report to the meeting on 23rd May 2005. As I mentioned, at the site visit members went into a first floor room of an objector's home to view the site of the wheel. When the matter came back to committee on 13th June 2005, the officer's report still did not contain a loss of privacy condition, but the planning permission that was issued on 28th June 2005 did have such a condition. In fact, it was a condition which members were told at the meeting on 13th June 2005 had been proposed by the Interested Party and which members obviously thought reasonable to lessen the potential for overlooking. The condition, which was condition 6, stated:
"Prior to the wheel being brought into use, each passenger carriage shall be fitted with tinted glazing on the west facing side, in accordance with a sample or specification to be submitted to and agreed in writing by the Local Planning Authority. The glazing shall thereafter be retained, and any additional or replacement passenger carriages shall be fitted with identical glazing.
This condition is imposed to lessen the potential for loss of privacy to occupiers of nearby residential properties from users of the observation wheel."
(b) overlooking
Condition 6 is the subject matter of the first complaint made by the claimants relating to the wheel permission. It is said to be bizarre and irrational because, whilst the tinted glazing would prevent residents seeing the occupants of the passenger carriages, it would not prevent those in the passenger carriages seeing the residents in their homes. It therefore did not do anything to address the privacy point to which the condition was directed. Reliance was placed on paragraph 15 of the Annex to Circular 11/95 to the effect that conditions should only be imposed if they are necessary. It was submitted that the condition which was thought to be necessary was useless.
There is considerable force in the point made by the claimants but I am not persuaded that it would be appropriate for the Court to intervene. This was a matter of judgment for the committee. The officer's advice was there would be no harmful overlooking, and the members had made a site visit. The Interested Party had proposed a condition for tinted glazing and the members thought it reasonable to take up that proposal to lessen the potential for loss of privacy. The reason given for the imposition of the condition was to lessen, not to overcome, the potential for loss of privacy. The degree of tinting may affect the degree to which the potential would be lessened. It may be fairly marginal, though it could well lessen any perception of overlooking. These are all matters of degree which were matters of judgment for the committee. As I have said, despite the force of the point made, I am not persuaded that it is a matter on which the Court should intervene.
(c) lighting
The second point taken by the claimants in relation to the wheel permission relates to the lighting condition, condition 3, which provides:
"No development shall take place until a detailed scheme for lighting of the development has been submitted to and approved, in writing, by the Local Planning Authority and no lighting shall be installed other than in accord with the approved scheme.
This condition is imposed in the interests of the visual amenities of the area and the residential amenities of neighbouring occupiers."
The condition had been recommended in the officer's reports. Information had been obtained about lighting by the defendant from the Interested Party's agent which was that there was would be decorative lighting on the wheel and on the gondolas and that there would be general lighting to the access platform.
The claimants submit that there was no assessment of the impact of the lighting and that it was therefore impossible for members to know whether or not it could be made acceptable by the imposition of a condition.
Whilst it is true that the officer's reports do not contain any assessment of the impact of the lighting, they had obtained information about the proposals for lighting which had satisfied the Public Protection officer, and which enabled members to accept the recommendation that it...
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