R (Turpin) v Commissioner for Local Administration
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE COLLINS |
| Judgment Date | 28 June 2001 |
| Neutral Citation | [2001] EWHC 503 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/981/2000 |
| Date | 28 June 2001 |
[2001] EWHC 503 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London WC2
Mr Justice Collins
CO/981/2000
The Queen on the Application of
MR C GEORGE QC & MR G JONES (instructed by Richard Buxton, 40 Clarendon Street, Cambridge, CB1 1JX) appeared on behalf of the claimants
MR B ASH QC (hearing) & MR T CORNER (instructed by Pulvers Solicitors, 114A High Street, Watford, WD1 2BL) appeared on behalf of the defendant
This is a claim for judicial review of a decision of the Commissioner for Local Administration, otherwise known as the Local Government Ombudsman, given on 16th December 1999 that the Cambridge City Council had not been guilty of maladministration and that he was not proposing therefore to investigate the complaint made by Mr and Mrs Turpin any further.
The case has a long and unfortunate history. The claimants live in Cambridge at 2 Malden Close. In April 1991 they were granted planning permission to build a house which they now live in on land which they owned comprising the south east corner of a site which had had planning permission granted in 1985 for a commercial and residential development. That development had been partially implemented. To the west of the Turpins' property it was contemplated that a detached house would be built, because that is what the planning permission had permitted, and that it would be positioned some 6.4 metres from the west edge of the house which they had had permission to build.
The principal officer in charge at the Council at all material times was a Mr Peter Carter. The documentation before me shows that concerns were being expressed about the high density on the site and so it was required that the house and garage which the Turpins originally planned to build be moved to the south in the plot so that its north wall was at least 3 metres from the north boundary. On the west there is an accessway over which rights of way for the house anticipated to be built and access for the garage for the claimants could be maintained.
The size of their proposed house had in the circumstances to be reduced and some modifications made to the west side so that a window was removed and some opaque windows in the roof were inserted so as to avoid overlooking of the anticipated house which was to be built to the west.
When they obtained their planning permission, the claimants knew that the development was likely to take place and, not unnaturally, they assumed that the development, when it took place, would mean that the house to the west remained at a distance of 6.4 metres.
In 1994 the Cambridge Housing Society (“CHS”) applied for planning permission originally for nine houses in two blocks, three to the north and six to the west, leaving the claimants' house sandwiched, as it were, between them. If the plans were inspected carefully, they showed, when measured, that there was only to be 4 metres between the west end of the claimants' house and the side wall of the six houses which were to be built to its west.
The claimants were, as they should have been, notified of the proposed development and, unfortunately, as they accept, they did not notice that the distance of 6.4 metres had been modified to one of only 4 metres. No doubt they assumed that there would have been no change. As it happened, each of them had unfortunate family difficulties at the time and had much on their minds. It is not necessary to go into the details. Suffice it to say that it is perfectly plain that there was every reason why they should have failed to spot the particular measurement.
The report to the Council's Planning Sub-Committee on 7th December 1994 recommended that the application be refused for two reasons. The second is immaterial: it relates to the proposal to construct a ramp, which in the end was not pursued. The material objection was set out in paragraph 8.4 of the report. Having referred to the relevant policies in the Draft Local Plan dealing with density, the author of the report continues:
“On a more detailed level I am particularly concerned about the terrace of 3 houses at the eastern end of the site. The size of this site is actually smaller than the adjacent site upon which 2 Malden Close a detached house is positioned [that is the claimants' house]. In order to try and accommodate 3 houses on this site the end result is very little space either for gardens; the smallest of which is 4.7m X 6.6m; and also very little space, only 1 metre, between the gable wall of the houses and the side boundary. Car parking and manoeuvring space is also positioned too close to these houses. All these factors contribute to a cramped appearance constituting over development of that part of the site.”
As I say, the recommendation was to refuse. The recommendation was followed by the Committee and on the two grounds the proposal was refused.
CHS accordingly submitted an amended proposal in which they reduced the block at the north from three houses to two, which enabled them to reposition it and give more space, and in addition they removed the ramp. Again, the claimants were notified and were able to make objections. Again, they failed to spot the change from 6.4 to 4 metres. This time the officers recommended approval of the proposal. They say this in the report to the Committee of 1st February 1995:
“The other material considerations are the Draft Local Plan policies. Of particular relevance is policy BE8 which provides criteria against which housing applications are assessed. The reduction in the number of dwellings from the previous application has resulted in an improvement to the overall layout, increasing the amount of landscaping space and the size of rear gardens. Though still a relatively dense scheme in terms of the character of the surrounding area, in view of previous permissions on the site this is now acceptable.”
The previous permissions there referred to are a number of permissions, including that of 1985, relating to the site other than the permission given to the claimants back in 1991. That was not referred to in the report and was not put before the Committee.
The approval was also to be subject to a section 106 agreement and there were conditions imposed. One of those, condition number 4, required the submission of a landscaping scheme before the development could commence.
The proposal, of course, did not amount to a formal grant of planning permission, and in a letter of 21st February a Senior Planning Officer wrote to the agents for CHS in these terms:
“The application was considered by the Planning Sub-Committee on 1st February where it was resolved to grant planning permission subject to the signing of an agreement under Section 106 … to ensure the housing remains as affordable housing and relevant planning conditions …
The Section 106 agreement will be drafted shortly by the Council's lawyer who will wish to forward a copy to your client's solicitors.”
It then asks for various details and goes on:
“The decision notice will be issued when the agreement has been completed. Works on site should not commence until the decision notice has been issued and relevant conditions have been discharged.”
Reference is then made to the condition requiring the submission and approval of a landscape scheme and also of samples of materials to be used.
Notwithstanding that letter and notwithstanding that they were fully aware that planning permission had not formally been granted, CHS started work. It is not entirely clear precisely when they started, but I have been told that it was some time in either late February or March of 1995.
Since planning permission had not then formally been granted, it was open to the Council to rescind it or to vary it at any time before the formal grant. If authority is needed for that proposition it is to be found in a judgment of Woolf J in R v West Oxfordshire District Council, ex parte Pearce Homes Ltd [1985] 26 RVR 156. I do not need to cite any passage from that authority; it is not contentious.
In April 1995 Mr Turpin noticed that footings were being dug for the side wall of the development. He thought that those footings were in the wrong place because they were too close to his house. He measured and discovered they were only 4 metres away. He spoke with CHS and tried to persuade them to take some ameliorative measures, including hipping the roof. He took the view at that time that there was little he could do because he was shown the planning documents and appreciated that indeed the resolution to grant permission related to those documents. It is likely that at that time he believed that planning permission had actually been granted because he was unaware of the significance of the section 106 requirement.
He got nowhere with CHS and so he complained to the Council. A meeting was held on 16th May attended by Mr Carter and by a Mr Durrant, who was, as it happens, the Councillor for the ward in which the Turpins live but who was also the Chairman of the Planning Committee. Indeed, Councillor Durrant, as the Ombudsman discovered when he was making his enquiries, had in January 1995, prior to the decision of the Planning Committee, attended at the site and had formed the view that the proposal was rather too close to the Turpins but had been informed that the Turpins were aware of the development and that no objection had been raised. Accordingly, he did not pursue the matter any further.
Mr Carter made a note of the meeting of 16th May. In that he records that...
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