Roger Wood v Secretary of State for Communities and Local Government and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Lindblom
Judgment Date06 August 2015
Neutral Citation[2015] EWHC 2368 (Admin)
Date06 August 2015
Docket NumberCase Nos: CO/5538/2014 & CO/1442/2015

[2015] EWHC 2368 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

PLANNING COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Lindblom

Case Nos: CO/5538/2014 & CO/1442/2015

Between:
Roger Wood
Claimant
and
(1) Secretary of State for Communities and Local Government
(2) The Broads Authority
Defendants

Mr Daniel Stedman Jones (instructed by Leathes Prior) for the Claimant

Mr Gwion Lewis (instructed by the Government Legal Department) for the First Defendant

Mr William Upton (instructed by Norfolk Public Law) for the Second Defendant

Hearing date: 19 May 2015

Mr Justice Lindblom

Introduction

1

On Thorpe Island in Norwich there is a basin joined by a short channel to the River Yare. The site is now owned by the claimant in this case, Mr Roger Wood. Boats are being moored in the basin. These proceedings, under sections 288 and 289 of the Town and Country Planning Act 1990, arise from enforcement action taken by the second defendant, the Broads Authority, against the use of the basin for mooring and other development said to have taken place in breach of planning control. Mr Wood appealed against the enforcement notice to the first defendant, the Secretary of State for Communities and Local Government. The first decision on that appeal, in which the inspector allowed it in part, was quashed by consent. The appeal was re-determined by another inspector, Mr Phil Grainger, in a decision letter dated 20 October 2014. Again it partly succeeded, and planning permission was granted for the mooring of no more than 25 boats in the basin. Mr Wood now challenges that decision. The court's task is to decide whether it was lawfully made.

2

On 15 April 2015 H.H.J. Robinson, sitting as a deputy judge of the High Court, ordered a "rolled-up" hearing of the application for permission under section 289 and, if permission were granted, the appeal itself, to be fixed on the same day as the hearing of the application under section 288.

The applications for an extension of time and to amend

3

On 28 November 2014, within the statutory period of six weeks for making an application to the court under section 288, but before counsel had been instructed on his behalf, Mr Wood issued a claim for judicial review. He should, of course, have filed a Part 8 claim form. He also failed to issue, within 28 days of the inspector's decision (i.e. by 17 November 2014), the appellant's notice required for an appeal under section 289. On 16 December 2014 the Broads Authority made an application to strike out the section 288 application as disclosing no arguable case. On 2 February 2015 the grounds on which Mr Wood now wishes to rely were lodged with the court, but it was only on 20 March 2015 that he filed an application for permission to appeal under section 289. He therefore requires not only the court's permission for an extension of time to bring the section 289 application before the court (see paragraph 26.1 of Practice Direction 52D), but also permission to amend the grounds of his application under section 288 to conform to the grounds of his intended appeal under section 289.

4

Neither the application for an extension of time nor the application for permission to amend is resisted by Mr Gwion Lewis for the Secretary of State. Both, however, are opposed by Mr William Upton on behalf of the Broads Authority. On behalf of Mr Wood, Mr Daniel Stedman Jones acknowledges that Mr Wood – acting without the benefit of legal advice, which he was unable to afford at the time, and unfamiliar with the procedural complexities involved in cases such as this – failed to launch his challenge to the inspector's decision in the right way, and failed to articulate his grounds as he should have done (see the judgment of Mr Charles George Q.C., sitting as a deputy High Court judge in Islam v Secretary of State for Communities and Local Government [2012] EWHC 1314 (Admin), at paragraphs 21 to 31). Mr Stedman Jones submits, however, that any prejudice to the Broads Authority and to the public interest is insignificant. The application under section 288 was lodged within the statutory time limit, though in a procedurally incorrect way, and the challenge was promptly and appropriately refined once Mr Wood had taken legal advice. Mr Upton submits that Mr Wood should not be given the opportunity he seeks to prolong the process, and that, as may be inferred from witness statement of the Broads Authority's Chief Planner, Ms Cally Smith, dated 28 April 2015, an extension of time for the section 289 proceedings in this case would prejudice not only the Broads Authority as a party defending the proceedings but also, more importantly, the public interest in the swift and effective enforcement of planning control (see the judgment of Sullivan J., as he then was, in R. (on the application of Wandsworth London Borough Council) v Secretary of State for Transport, Local Government and the Regions [2004] 1 P. & C.R. 32, at paragraphs 16, 23 and 28); and that although the court has the power to allow an amendment to the grounds of the section 288 application, the implication in costs for the Broads Authority should not be ignored (see the decision of the Court of Appeal in San Vicente v Secretary of State for Communities and Local Government [2014] 1 W.L.R. 966).

5

In my view, any prejudice to the Broads Authority and to the public interest in allowing Mr Wood's challenge to proceed on the amended grounds would not be significant. This is not, as I see it, a belated attempt to introduce an entirely new or additional claim (see the judgment of Brooke L.J. in Thurrock Borough Council v Secretary of State for the Environment, Transport and the Regions [2011] 1 P.L.R. 94, at p.100). The section 288 proceedings, albeit not in a Part 8 claim form, were begun in time. And the amended grounds have, as Mr Lewis accepts on behalf of the Secretary of State, "brought focus to these proceedings". The Broads Authority's stance as local planning authority is understandable. But I am not persuaded that I should refuse either the necessary extension of time for the section 289 application or permission to amend the grounds of the application under section 288. The consequences in costs can be dealt with, if need be, at the conclusion of the proceedings.

The issues for the court

6

There are three issues for the court to decide. They are:

(1) whether the inspector erred in law in his conclusions on the ground (c) appeal (ground 1);

(2) whether he was wrong to limit the mooring use of the basin to 25 vessels (ground 2); and

(3) whether his decision was irrational (ground 3).

The site's planning history

7

In the 1960's, Jenners of Thorpe Ltd., a company which was hiring out boats from another site nearby, sought to expand its operation on to Thorpe Island. It made several applications for planning permission, some of which are not directly relevant to the issues in these proceedings.

8

On 6 September 1965 Jenners made an application to Norfolk County Council for outline planning permission (application no. BF7642) for the construction of a basin and other development related to boatyard use, including wet and dry boathouses and a clubhouse. In the box on the application form where the location of the application site is to be given, three sites are referred to, the third of which is:

"(c) Island site bounded by River Yare and New Cut (see drawing no. A770–12A.)".

In the box where a description of the proposed development had to be provided, it was stated:

"SEE ACCOMMODATION SCHEDULE ON DRAWINGS."

The drawings have not been retained in the Broads Authority's records. But a planning officer's report on this scheme has survived, in which the proposed use of the "Island" is described in this way:

"(i) Construction of mooring basin,

(ii) Erection of Wet and Dry boathouses,

(iii) Erection of Club House …

as illustrated on Plan Nos. A.770/12A, A 770/11A and A 770/10A."

9

On 23 February 1966 Jenners submitted to Norfolk County Council an application for development on the island site, for the construction of a basin (application no. BF8095). In the box for the description of the proposed development in the application form the proposal was described in this way:

"FORMATION OF BASIN

PLEASE REFER TO DRAWING 770–15A."

Drawing A770–15A shows the proposed basin, indicating its precise siting and dimensions, with an inset drawn to a larger scale showing the detail of the proposed piling in the basin and along a stretch of the riverbank either side of the cut. The legend on the drawing states:

"JENNERS

THORPE

(PHASE 1 STAGE 1)

PROPOSED REDEVELOPMENT

at YARMOUTH ROAD, THORPE

for JENNERS OF THORPE LTD

ISLAND SITE

…".

10

Outline planning permission for the development proposed in application no. BF7642 was granted by Norfolk County Council on 4 April 1967. The particulars of the development given in the decision notice were:

"Residential and Commercial Development consisting of 3 sites:

(1) 22–26 Yarmouth Road, (2) Site of Thorpe Hall,

(3) Island bounded by River Yare and New Cut."

The permission was stated to be for:

"… the development shown on the plan(s), and/or particulars deposited with the Blofield & Flegg Rural District Council on the 6 th day of September 1965 …"

with this clarification in an asterisked note:

"and as subsequently amended on the 16 th day of March, 1967, by the withdrawal of that part of the application involving the demolition of Thorpe Hall and the redevelopment of the site (No.2)."

The outline planning permission was granted subject to two conditions. The first required the submission and approval of the...

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