R v East Dorset District Council ex parte David Neville De Mattos
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE TUCKER |
| Judgment Date | 19 December 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1219-17 |
| Docket Number | CO/1983/97 |
| Court | Court of Appeal (Civil Division) |
| Date | 19 December 1997 |
[1997] EWCA Civ J1219-17
IN THE CROWN OFFICE
Royal Courts of Justice,
Strand,
London WC2
Mr Justice Tucker
CO/1983/97
MR I GLEN QC (Instructed by Gregory Rowcliffe & Milners, DX95) appeared on behalf of the Applicant.
MR H HUMPHREYS (Instructed by Sharpe Pritchard, DX353) appeared on behalf of the Respondent.
Friday, 19th December 1997
I have before me two Applications by David de Mattos (the Applicant), relating to the development of a site at Witchampton Paper Mill in Dorset. The first is an Applicant for Judicial Review of the decision of the East Dorset Planning committee dated 10th March 1997 which granted Planning Consent to Pearce Construction for development at the site. The second is an Application for leave to apply for Judicial Review of a decision of the same Committee dated 23rd October 1997 which granted Planning Consent to Yellow Three Developments at the site.
The first Application is made pursuant to leave granted by Buxton J (as he then was) on 14th August 1997. The Application itself is dated 9th July 1997, i.e. within one day of the three months period allowed by RSC 0. 53 r 4, if the starting point is regarded as the date of the grant of planning consent. The Respondents contend that the starting point is not the date of the making of the grant, but of the passing of the resolution which preceded it, which was 7th January 1997. Accordingly, the Respondent would wish to contend that the first Application was made out of time, and that there is no good reason for extending the period, and that in any event the Application was not made promptly. However, leave having been granted, Mr Humphreys for the Respondents recognises that he has difficulty in raising the issue of delay at this stage, in the light of the decision of the Court of Appeal in R v Criminal Injuries Compensation Board Ex parte A (1997) 3 WLR 776. Mr Humphreys accordingly reserves his position on this point.
However, Mr Humphreys is entitled to take the point in relation to the second Application, which is an Application for Leave. Here it is contended that the resolution upon which the grant was founded, was passed as long ago as 19 July 1994. The Application having been made on 2nd December 1997, and received in the Crown Office on 3rd December, it would on this basis be long out of time.
In my opinion the decision in respect of which it is appropriate to seek Judicial Review is not the passing of the resolution, but the granting of the permission. The material matter to be challenged is the authorisation to carry out development of land, and this did not occur until the grant of Planning Consent.
There are many instances of resolutions which are not converted into grants, or where a long delay occurs of which this case affords an example, in that there was a gap of some three years between the resolution and the grant. However, no development could have taken place on the basis of the resolution alone. I am fortified in this view by a decision of a strong divisional Court in R v Yeovil Corporation Ex parte Trustees of Elim Pentecostal Church, Yeovil (1972) 70 LGR 142. Lord Widgery CJ held at page 148 that there is in effect no planning permission unless and until the written notice of the planning authority's decision has been given to the applicant. Lord Widgery based himself in part on an earlier judgment by Lord Denning MR that it is not permissible to look at the resolution to construe the written permission.
Accordingly I hold that the material date is the grant of the permission, and that both these Applications (and in particular the second Application, in respect of which the point has been taken) are in time. That does not of course prevent Mr Humphreys from arguing that there has been undue delay when addressing me on the exercise of my discretion whether or not to grant relief under Section 31 Supreme Court Act 1981.
The application relates to the site of a 200-year old mill standing on the River Allen between Wimborne and Cranbourne, about 1,000 metres from Witchampton village. The site comprises approximately 2.8 hectares (6.8 acres).
The mill has not been in use for some time now, but the bulk of the buildings remain, in varying stages of disrepair. The site is located within a designated Area of Outstanding Natural Beauty. It is illustrated in an aerial photograph, and shown in plans which have been put before me. By reason of the location, the site is rightly subjected to stringent Planning Controls.
In 1983 the then District Council purchased the site for £250,000. It was hoped to restore the mill into working order so as to create some local employment. Unfortunately this proved to be an unviable proposition, and in December 1990 the mill owners went into liquidation and work at the mill ceased. Everyone agrees that it is now derelict and is an eyesore which ought to be demolished. The only buildings considered worthy of retention are the Mill House and offices and possibly the stable block, though there are doubts about the latter.
It is a necessary catalyst of the clearance of the site that funds should be generated by permitting a limited form of residential development. The District Council set a limit of 32 bedrooms exclusive of the existing buildings, which would have involved the erection of a number of new dwellings. The local villagers had their own ideas. They agreed with the proposal of a restricted residential development, but disputed the scale of it. They formed the Witchampton Mill Site committee, of which the Applicant is the Honourary Secretary, to make representations as to the redevelopment of the site.
In due course the villagers produced their own scheme. This involved the purchase of the site for £250,000 and the building of four new houses on the west bank of the river, but leaving the east bank free of development as a wet land area. On 22nd March 1994, they submitted a Planning Application. They rightly pointed out that, since the land was owned by the council, any prospective approval of development contrary to the Development Plan must be sent to the Secretary of State. However, the Secretary of State decided not to call the Application in and not to intervene. So it was a matter for the council to decide as they saw fit.
However, there were other bodies interested in this site. One of these was Yellow Three Developments Ltd (Y3). They had the resources to outbid the villagers. On 7th May 1993 they entered into a contract to purchase the site for £600,000, conditional upon being granted Planning Permission to the limit set by the Council, including development to the east of the river. As time went by Y3's proposals became more and more ambitious. They wanted larger schemes. Most of their applications were refused, though in July 1994 the Planning Committee resolved to grant permission...
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