Rayner Thomas v Carmarthenshire Council Davis Coaches Ltd (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Burton |
| Judgment Date | 28 January 2013 |
| Neutral Citation | [2013] EWHC 783 (Admin) |
| Date | 28 January 2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6926/2012 |
[2013] EWHC 783 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
CARDIFF
Sitting at:
The Rolls Building
110 Fetter Lane
London EC4A 1NL
The Honourable Mr Justice Burton
Case No: CO/6926/2012
and
Dr Paul Stookes (of Richard Buxton Environmental and Public Law) appeared on behalf of the Claimant.
Ms Tina Douglass (instructed by Carmarthenshire County Council) appeared on behalf of the Defendant.
Mr Benjamin Blakemore (instructed by Gomer Williams & Co Ltd) appeared on behalf of the Interested Party.
Hearing dates: 23 (Cardiff Civil Justice Centre) and 28 January 2013
The Interested Party, Davis Coaches Ltd, is an operator of school buses from a coach park on part (Area 6) of a former colliery site at Cwmgewili, Llanelli, in Carmarthenshire ("the Former Colliery") and has been granted retrospective planning permission by the Defendant Council after an unsuccessful appeal against an enforcement notice. The Claimant is owner and occupier of the neighbouring land and challenges the decision of the Defendant. The overall Former Colliery site (Areas 1 to 6) is 7.4 hectares. The Interested Party's site the subject of the challenged permission was said to be 0.4 hectares. (I shall return to these measurements below.)
There has been a considerable planning history in relation to the former Colliery site as a whole. Area 4, which is adjacent to, and on land higher than, Area 6 is permitted, pursuant to a 2001 decision, to be used as a vehicle driver training centre, and in 2005 such permission was extended to cover other uses and other areas of the Former Colliery site. At that stage, Area 6 was to be cleared and landscaped. From about 2008, the Interested Party has been using Area 6 for the parking and maintenance of buses/coaches. The Defendant refused retrospective planning applications by the Interested Party in 2008 and 2009. By this time, the Claimant was raising concerns about flooding caused by surface water run-off, as a result of inadequate drainage onto her land from the whole of the Former Colliery site, including Area 6, and provided, as part of her opposition to the Interested Party's then applications in respect of Area 6, a technical report by a consultancy, ADAS, dated May 2009.
On 21 December 2009, an enforcement notice was issued by the Defendant in respect of its use of Area 6, retrospective permission having been refused. The Interested Party put in appeals against both the refusal of the 2009 application and the enforcement notice. By the time of the appeal hearing before the Inspector in May 2010, there was a proposed s106 Agreement (an agreement pursuant to s106 of the Town and Country Planning Act 1990 as amended ("the 1990 Act")) to which the owners of Areas 4 and 3 (where some coaches were also parked) would also be parties, which the Inspector took into account by the time of his decision on 4 June 2010, and in that context, the Interested Party's appeal against the refusal of planning permission had been effectively abandoned, and its appeal against the enforcement notice was limited to an application for an extension of time. The Inspector set out the following in his Conclusions:
"15. Whilst it is intended that the S106 Agreement will satisfactorily address long-term arrangements for highway safety and drainage, it is estimated that it may take some 3�6 months to finalise the Agreement and complete the improvements. In practical terms the parties are confident they will be successful and the development will then benefit from planning permission. However, I have considered the current appeal in its own right and have made no assumptions about the S106 Agreement, the related issue of planning permission or the improvement works themselves. If the main parties cannot reach agreement the enforcement notice must be capable of standing alone.
16. In reaching my conclusions above I have taken into account all relevant matters raised. For the reasons given above I conclude that a reasonable period for compliance would be 6 months, and I am varying the enforcement notice accordingly, prior to upholding it. The appeal under ground (g) succeeds to that extent."
Against this background, the Interested Party made a further planning application in December 2009, as described by Mr Hywel Davies, the relevant officer dealing with matters on the Defendant's behalf from December 2009:
"24. On 11 December 2009 planning application E/ 22175 was validated: the said retrospective application was essentially a re-submission of the previously refused E/ 20978 planning application and sought consent to retain the use of the land as a coach depot and also the retention of the maintenance building, utility stores and storage container.
25. As part of the E/ 22175 planning there were numerous amendments to the initial proposal. An improved drainage plan was provided to address foul sewerage from both the application site and the existing driver training centre; passing places to the narrow road were proposed; an increased visibility splay was proposed and cleared; petrol interceptors at the lowest point of the site; areas permitted for parking on the driving centre site should be relinquished and landscaped. Not all of these improvements lay within the application site and a S.106 agreement would be required before the issue of any permission if the application was granted."
The Claimant complained about the Defendant's delay and alleged maladministration to the Public Services Ombudsman for Wales, who delivered a report dated 29 March 2011, relevant paragraphs of which are as follows:
"79. [The Claimant] has spent a considerable amount of time and money in trying to ensure that the development on her boundary, both authorised and unauthorised, does not pollute her land. This has proved a frustrating and stressful experience for her during a time of serious ill-health and has yet to be resolved. �
80. The planning history reveals the piecemeal nature of the development. Despite its situation in a rural environment, the site formerly housed a colliery and given that previous use, it is understandable that the Council believes that such a brownfield site is suitable for the use to which it is now being put which is a coach depot and driver training centre providing local employment.
81. I believe, however, that the recent planning history which I have included in this report in some detail discloses an inconsistent and confused approach by the Council's Planning Department. �
�
88. � To remedy the injustice caused to [the Claimant] by this maladministration, the Council should resolve the outstanding issues as speedily as possible. � If the proposed s106 agreement cannot be signed and the consent cannot be issued, then given that the Enforcement Notice is in existence and the date for compliance has passed, prompt consideration should be given to the issue. �
89. I also believe that the stress and frustration suffered by [the Claimant] Mrs T due to the Council's failings should be recognised by a financial payment of �1,000 to recompense her in some way for the considerable time and effort she has been put to to try to protect her land. �"
The Defendant's officers recommended the grant of the further application. Mr Davies describes the position:
"31. The authority deemed that there had been a change in circumstances since the refusing of the previous planning application, in that it had been established that the visibility splay at the access is under the control of the applicant, and as such the improved visibility splay could be controlled via the imposition of suitable conditions. In view of the above the Head of Transport withdrew its original objection and recommended approval on the proviso that the number of bus parking spaces associated with this development would be limited to 15 no. in total.
32. To address highway concerns, the planning permission was subject to the applicant entering into a Section 106 Agreement with the authority to ensure that all other existing bus parking areas within the training centre site be landscaped and no longer used for parking purposes, apart from the 3 no. buses permitted for the Training Centre. It was highlighted by the Head of Transport that there were at the time of the application proposals to close a number of central reservations to prevent right turn movements along the A48 dual carriageway between Cross Hands and Pont Abraham. These works have since been executed. As such, the authority was satisfied that the previous highway objection had now been overcome.
33. The most contentious issue raised by objectors related to the lack of adequate provision for foul and surface water disposal from the overall site (encompassing the driving centre). The adjacent landowner has continually maintained that field ditches around the perimeter of field enclosures within her ownership were being polluted due to the discharge of effluent from the driving training centre. It was also alleged that the pipe work for the septic tank serving the driving training centre had been damaged and this had further compounded the pollution problem. The objector in backing up her claims had previously commissioned an independent drainage report which was submitted to the Authority for consideration; at the time of the previous application; both reports were subject to a consultation exercise with the Environment Agency, as well as the Authority's Head of Public Protection. A drainage report was also commissioned by the applicant.
34. The drainage issue had been the subject of continued enforcement investigations by the Authority as well as by other internal/external agencies. However the authority deemed the concerns raised related primarily to the...
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