R (on the application of Edward Blacker) v Chelmsford City Council
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Thornton |
| Judgment Date | 06 December 2021 |
| Neutral Citation | [2021] EWHC 3285 (Admin) |
| Docket Number | Case No: CO/644/2021 |
| Court | Queen's Bench Division (Administrative Court) |
and
[2021] EWHC 3285 (Admin)
THE HON. Mrs Justice Thornton DBE
Case No: CO/644/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Wayne Beglan (instructed by Holmes & Hills LLP) for the Claimant
Mr Josef Cannon (instructed by Chelmsford City Council) for the Defendant
Hearing dates: 02/11/2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimant is a local resident who challenges the refusal of outline planning permission, by Chelmsford City Council, for 55 new dwellings on land in Roxwell Essex. The planning application was first considered by the Council's Planning Committee at a meeting in November 2020, at which the majority of Committee members were in favour of the application. It returned to the Committee at a second meeting, in January 2021, whereupon the Committee resolved to refuse permission.
The Claimant brings the challenge on four grounds. He contends that the Planning Committee's decision making failed to follow the Council's constitution (Ground 1). In resolving to refuse permission at the second meeting, the Committee failed to grasp the “intellectual nettle” of its ‘in principle’ decision at the first meeting to grant permission (Ground 2). The Committee failed to follow a fair procedure (Ground 3). At the second meeting, the Committee's mind was closed to the business properly before it (Ground 4).
In response, the Council contends that the claim misunderstands the decision made by the Committee at the first meeting, which was simply to defer the application for further consideration. The Council's constitution is not as interpreted by the Claimant. There was no unfairness in the procedure and the minds of Committee members were not closed. The Claimant's real complaint is that the Committee changed its mind about the application between the first and second meeting, as to which there is nothing unlawful.
The issues raised by the claim are:
1) What the Planning Committee decided at its first meeting;
2) Interpretation of the relevant parts of the Council's constitution;
3) Whether the principle of consistency is engaged by the decision at the first meeting;
4) The fairness of the decision making; and
5) Whether the Committee's mind was closed to the business properly before it at the second meeting.
Factual Background
The Claimant has been a resident of Roxwell since 1990. He lives opposite the site at Ash Tree Farm, Bishops Stortford Road, Roxwell, Chelmsford, where the residential development was proposed. The Defendant is the local planning authority. The Interested Party is the applicant for planning permission. He plays no part in the proceedings.
The application site is currently an industrial estate, allocated for employment use in the Chelmsford Local Plan. It includes a number of buildings, containers and areas of external storage. It includes an area of land that has been used unlawfully to store and process waste and other materials in a mound nearing 15m in height. This has been the subject of enforcement action.
The Interested Party applied for outline planning permission for development described as “ Demolition of all existing workshops and commercial buildings, and the removal of hardstanding. Proposed up to 55 new dwellings, alterations to vehicular and pedestrian access. The formation of new estate roads, public footpaths, parking spaces, private amenity areas and public open spaces with children's play area and drainage infrastructure”. Had the planning application been successful, its effect would have been to extinguish the employment use of the site and introduce a residential use.
A Planning Officer prepared a report on the application, recommending refusal. This was on the basis that the proposal is contrary to the local plan. In particular, residential development would be harmful to the intrinsic character and beauty of the countryside. It would represent an isolated and significant enclave of development that would conflict with the linear and sporadic development in the area. The development would remove the employment provision at the site. The report noted that planning enforcement action was the appropriate way to deal with unlawful development of the site.
The first meeting of the Planning Committee
The application came before the Planning Committee on 3 rd November 2020. The Claimant was supportive of the planning application and spoke in its favour, explaining the difficulties faced by local residents due to the current use of the site:
“The site has been a problem, mainly due to the very poor planning conditions set to control the various activities on the site. This has allowed for seven day working and little control of hours worked. For us residents surrounding the site, this means we are unable to have what I would call normal use of our homes. For example, a barbeque on a weekend or bank holiday is not very pleasant with a large excavator and a concrete crusher in the background, and if the wind is in the wrong direction, a cloud of dust will be added to the mix. Just because we're in a small rural community, it shouldn't mean we have to grow up with this sort of disruption. On Monday to Saturday around 50 grab lorries a day enter and leave the site and machinery starts at 5:30 in the mornings. None of this is likely to change. As you know, planning permission cannot be rescinded.
The housing, as I see it, is part of normal village life, providing homes for the people in a pleasant, healthy environment. It is also – it is so obviously not where you put heavy industry. I'm sure this type of industrial area would never be granted planning permission today. This is a very rare opportunity to put right the mistakes of the past…….I can only see what I think is a choice between a site that has been turned into an environmentally damaging rubbish dump and the chance to turn that eyesore into something good for our community. Hope that common sense will prevail, and the members will grant permission for this development”
Relevant extracts from the minutes of the Committee meeting record the following discussion and resolution on the application:
“Seven statements from members of the public and one from the local ward councillor were heard at the meeting. They argued that although the site was designated in the Local Plan as a rural employment site, and its redevelopment for housing would therefore be contrary to policy, the proposed development would be an improvement on the current use, part of which is unlawful and which caused disturbance and nuisance to local residents. Further, they were of the view that enforcement action would not resolve the problems associated with the current use, that the impact of the proposed development on the countryside would be no more harmful than that of the present use, and that the site was in a sustainable location.
The Committee's ensuing discussion centred on whether material considerations associated with the application could justify a departure from the Local Plan. Some members argued that in this case the benefits afforded by the proposed development, in terms of additional housing and improving the amenity of residents, were material considerations. Others said that whilst there were other rural employments sites not far from the application site, this site had specifically been designated as such in recently adopted Local Plan, which as well as providing sufficient land to meet housing need during the Plan period, also sought to meet anticipated demand for land to support business and economic growth.
Members also expressed doubts about the effectiveness of the enforcement action taken or proposed against the unauthorised uses of the site. Officers said that enforcement action only concerned unauthorised use of the northern part of the site and that the use and operation of the rest of site complied with planning and operational requirements. The effectiveness of planned action involving other authorities could not be judged at this stage.
…
Members also expressed views that the proposed development would not be as detrimental to the appearance of the countryside as the current use, that residential development would provide economic benefits to the area and that it would be more beneficial to biodiversity. There were contrary arguments that whilst the site was brownfield it did not mean that it all of it should be developed for housing, nor that the whole of the site could be regarded as detrimental to the appearance of the countryside.
After votes on motions either to refuse the application or to defer its consideration to enable conditions to be presented on any grant of planning permission, it was:
RESOLVED that the Committee, being minded to approve application 19/02123/OUT in respect of the site at Ash Tree Farm, Bishops Stortford Road, Roxwell, defer it to enable officers to report to a future meeting on conditions that could be attached to any grant of planning permission for the development .” (underlining is the Court's emphasis)
Preparation of the further report
On 15 th December 2020, the planning officer tasked with drafting the further report, required by the resolution above, sent an e-mail to the Planning Development Services Manager (‘Development Services Manager’) and the Councillor who had chaired the first Committee meeting (‘Committee Chair’) in the following terms:
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