R (Murrell and another) v Secretary of State for Communities & Local Government and another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BEATSON |
| Judgment Date | 26 March 2010 |
| Neutral Citation | [2010] EWHC 1045 (Admin) |
| Docket Number | Case Nos: CO/12807/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2010 |
[2010] EWHC 1045 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Sitting at:
Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Birmingham
B4 6DS
Birmingham Civil Justice Centre
Before: The Honourable Mr Justice Beatson
Case Nos: CO/12807/2009
CO/12815/2009
Mr Blackie (instructed by FBC Manby Bowdler LLP) appeared on behalf of the Claimant.
Mr Kolinsky (instructed by the Treasury Solicitor) appeared on behalf of the Defendant.
(As Approved by the Judge)
MR JUSTICE BEATSON:
1. The proceedings before me are an appeal pursuant to section 288 of the Town and Country Planning Act 1990 (“the 1990 Act”) against the decision of a Planning Inspector and an application for permission to apply for the judicial review of the decision of a Planning Inspector in respect of the costs of that appeal. The order which is to be judicially reviewed is the decision of the Inspector not to order the second defendant, Broadland District Council, to pay the claimant's costs of the appeal to the Inspector. The proceedings are brought together pursuant to the order of HHJ Oliver-Jones, who on 11 December 2009 ordered the judicial review application to be heard as a rolled-up application and to be listed together with the statutory appeal.
2. The appeal is in respect of a decision by the second defendant in respect of a prior notification in relation to an agricultural building the claimants required at their holding in Norfolk. The building that they notified that they required was a cattle shelter. The initial communication and application for determination as to the need for prior approval of this agricultural development was furnished to the second defendant in a document dated 28 November 2008, which is stamped received by the second defendant on 1 December. On 1 December the second defendant wrote to the claimants stating that the application did not comply with the statutory requirements and was invalid. It listed four reasons. These related to copies of proposed elevations required to a specified scale; copies of a block plan to a specified scale showing the size and position of the proposed development; and the fact that the application was not made on a new standard planning application form, which was the only form the council stated it could accept. The letter includes as the fourth bullet point under “Reasons”:
“Please supply a further three copies of the location plan.”
It is not at all clear what location plan was provided with the original application. The one in the bundle is stamped 9 December 2008, which was the date on which the second defendant validated the application. It is not clear whether additional copies of this were supplied, and that it had been supplied earlier. The fact that there is no 1 December stamp on the document, as there is on all the other documents received then, puts that into question. At any rate, the letter stated:
“The statutory period for determination of your application cannot commence until these requirements have been fulfilled and a formal letter of acknowledgment giving details of the statutory period for the determination of the application will then be sent to you.”
The writer of the letter states that, should the claimants wish to discuss the matter further, they should not hesitate to contact him.
3. The claimants then resubmitted an application for prior notification on the specified form. That form is signed and dated 4 December 2008. On 9 December 2008, as I have stated, the second defendant acknowledged receipt of the application, stated that it was validated on 9 December, and that every effort would be made to reach a decision within the statutory 28-day period, which expired on 5 January 2009. The second defendant reached its decision on 31 December 2008. That is within the period specified in the letter dated 9 December, but outwith the period of the initial submission, which is dated 28 November, and stamped received as 1 December. Taking the latter date, the time would have expired on 28 December. I have set this out in considerable detail because it forms one of the grounds of challenge.
4. As far as the second defendant's decision was concerned, it stated that prior approval was needed for this development. The letter refers to a previous application which was refused because of impact on the character of the countryside. It lists a number of policies relevant to the area, including ENV7 of the East of England plan, GS1, GS1, ENV1, ENV2, ENV8, ENV21, ENP 20, ENP 8 of the Broadland District local plan, Planning Policy Statement 7. It describes the site and states that the application follows the previous applications for a cattle shelter in a similar location to that proposed by the current application. It concludes that there was no detailed landscaping scheme; that, given the open-sided nature of the cattle shelter and its size and the steadily inclining levels throughout the site, it would take some time for the landscaping to establish and to provide effective screening. The letter also states that:
“…the surrounding landscape is relatively open and when considering the steady incline of levels throughout the site and the open nature of the eastern and southern boundaries of the agricultural holding, it is considered that the cattle shelter will be an unduly prominent form of development that represents an unacceptable visual intrusion in the countryside and does not maintain or improve the appearance of the locality, or enhance or respect the surrounding Area of Landscape Value.”
The conclusion is that prior approval is required, but that approval was refused because the application did not comply with the policies to which I have referred.
5. The claimants appealed on 28 May 2009. Their grounds of appeal can be summarised as follows. The second defendant did not make a decision regarding prior approval by the requisite date and therefore permission was granted within the terms of the Development Order, which I shall set out. Secondly, the claimants had no opportunity to submit further details because the second defendant had combined the decision that permission was needed with a refusal. Thirdly it is contended that, because of the General Planning and Development Order, the development is permitted. Statements of case were produced in June 2009. In July 2009 the claimants made a costs application, submitting that the second defendant had refused the application unreasonably.
6. The matter came before an Inspector, Janet Cheesley. The matter was determined by written submissions. She promulgated her decision on 29 September 2009. There was a site visit on 21 September. The Inspector dismissed the appeal. In summary form she first held that the second defendant was entitled to ask for further information about the design and siting matters concerning the application. Secondly, she stated that there was no material suggesting that the second defendant could not combine the two decisions, i.e. to require prior approval and to determine the matter. Thirdly, she agreed that the development was unduly prominent in an open location; that the landscaping details would take many years to be effective and screened. In relation to costs, she rejected the application.
7. Having summarised her decision, I will now set out the material parts of the decision letter. At the beginning of the document the Inspector states that the appeal was made under section 78 of the Town and Country Planning Act 1990 against a refusal to grant approval required under a Development Order. She names the appellants and she states the date the application was refused and the proposed development. The material and substantive parts of her decision letter are, under the heading “Procedural Matters”:
“2. An application for prior approval was made on 1 December 2008. The Council requested further information before it was prepared to validate the application. For whatever reason, the Council required more information to assess the proposal and requested elevation plans, block plans showing the size and position of the building, further copies of the location plan and requested that the application needed to be on a new set of standard application forms. The Council made it clear that the prior approval application would not be valid until these documents were produced. Whilst it is clear in Circular 02/2008: Standard Application Form and Validation that use of the standard form is not required for prior approval applications, I consider that the Council needed sufficient details to judge the design, siting and appearance of the proposed building. Therefore, in my view, the Council acted reasonably in requesting this information and I consider that the correct procedure was followed.
3. The appellants provided the information requested and the application was validated on 9 December 2008. The Council issued its decision on 31 December stating that prior approval was required and, for the reasons given, was refused. I have seen no evidence to persuade me that the combination of the two matters in one decision is not permissible.
4. The appellants have stated that the procedure followed did not allow for the submission of landscaping details. However, it is clear that there was nothing to prevent the details being submitted at any time before the council made its decision.
5. For the reasons stated above, I consider that the Council followed the...
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