Standard Life Assurance Ltd v Secretary of State for Levelling–Up, Housing and Communities
| Jurisdiction | England & Wales |
| Judge | James Strachan |
| Judgment Date | 19 October 2022 |
| Neutral Citation | [2022] EWHC 2632 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1548/2021 |
[2022] EWHC 2632 (Admin)
James Strachan KC
(sitting as a Deputy Judge of the High Court)
Case No: CO/1548/2021
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
PLANNING COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Gregory Jones KC and Jonathan Welch (instructed by Addleshaw Goddard LLP) for the Claimant
Robert Williams (instructed by Government Legal Department) for the First Defendant
Sasha White KC and Matthew Fraser (instructed by Eversheds Sutherland (International) LLP) for the Third Defendant
Hearing dates: 11 and 12 May 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10am on 19 October 2022
James Strachan KC (sitting as a Deputy Judge of the High Court):
Introduction
By claim form dated 28 April 2021, the Claimant challenges the lawfulness of a decision of a Planning Inspector, Nick Fagan BSc (Hons) DipTP MRTPI, appointed by the First Defendant given by decision letter dated 22 nd March 2021 (“the DL”). The decision was made following an inquiry held between 16–26 February 2021. The claim is brought under section 288 of the Town Country Planning Act 1990 (“the 1990 Act”).
By that decision, the Inspector allowed an appeal (ref: APP/F0114/W/20/3258121) made by the Third Defendant Party, Oakhill Group Ltd, under section 78 of the 1990 Act. The appeal was against a decision of the Council, Bath and North East Somerset Council (“the Council”), to refuse outline planning permission for redevelopment of the Former Hartwells Garage Site, Newbridge Road, Bath BA1 2PP (“the Appeal Site”).
The Claimant is the owner of the Maltings Industrial Estate in Bath (“the Industrial Estate”). The Appeal Site is immediately adjacent to the Claimant's Industrial Estate. The Third Defendant has a right of way over that Industrial Estate. It proposes to make use of that right of way in its redevelopment of the Appeal Site. The Claimant is concerned that such use and the redevelopment will prejudice its continued use of the Industrial Estate. It objected to the Third Defendant's planning application on that basis. It also subsequently took part as a “Rule 6 Party” at the inquiry held by the Inspector to determine the Third Defendant's appeal: see Rule 6(6) of the Town and Country Planning Appeals (Determination by Inspectors) (Inquiries Procedure) (England) Rules 2000 SI 2000/1625 (“the 2000 Rules”).
The Claimant contends that the Inspector erred in law in allowing the Third Defendant's appeal and in granting conditional outline planning permission for the proposed redevelopment. It advances three grounds of challenge, although the third is subdivided into two. In summary the Claimant contends:
a. The Inspector's decision was irrational. The Claimant submits that the Inspector found that it would be necessary to put in place some changes to infrastructure and access controls over the Industrial Estate for the proposed development to be acceptable in planning terms, but that the Inspector then failed to require that such measures be secured, or to explain why he was content to grant planning permission in their absence ( Ground 1).
b. The Inspector: (i) misread the deed of grant concerning the right of way so as to discount potential planning harm that would arise from the proposed development; and (ii) unlawfully relied on that private law instrument as a reason to discount or neutralise the planning harm the Claimant had raised ( Ground 2).
c. The Inspector relied on a planning condition restricting the industrial operations at the Industrial Estate, but failed to take into account, or grapple with, evidence that the units had been in sui generis use for the requisite 10 year period of time without enforcement action being taken, such that the condition restricting the operations was no longer enforceable; alternatively the Claimant alleges that the Inspector's reasons were inadequate bearing in mind the discussion about the evidence that took place at the inquiry ( Ground 3A).
d. The Inspector erred in dealing with the ‘agent of change’ principle expressed in paragraph 182 of the National Planning Policy Framework (“the NPPF”) and the relevant allocation policy in the development plan relating to the Appeal Site, bearing in mind the Inspector's conclusions elsewhere in his decision ( Ground 3B).
Permission to bring the claim was initially refused on the papers by His Honour Judge Allan Gore QC by Order dated 5 August 2021 on the basis that each of the grounds was unarguable. Permission was subsequently granted for the claim to proceed on all three grounds following a renewal hearing by Mr Tim Smith, sitting as Deputy Judge of the High Court, by Order dated 7 th October 2021.
Mr Jones QC appeared for the Claimant with Mr Welch at the hearing before me. Mr Williams appeared for the First Defendant. Mr White QC and Mr Fraser for the Third Defendant. I am grateful to them all for the clarity and focus of their written and oral submissions. The Council did not appear and was not represented.
By application notice dated 28 April 2022 filed shortly before the substantive hearing was due to take place, the Claimant applied for permission to rely on two further witness statements, one from Ms Emily Williams dated 27 April 2022 and a second witness statement from Ms Bending (the Claimant's planning consultant who appeared at the inquiry) dated 28 April 2022. Both witness statements refer to transcripts of the video recordings of the inquiry, following disclosure of further video recordings by the First Defendant to the Claimant on 25 March 2022.
Both the First Defendant and the Third Defendant objected to that application, principally on the basis that the application was made too late given paragraph 2.7 of Practice Direction 23A, and the Defendants considered that no good reason had been provided for filing the statements approximately 1 month after disclosure so close to the substantive hearing.
At the start of the hearing all the parties agreed in principle to the Court provisionally considering the witness statements and exhibits and any submissions on their contents, with any decision on the application to admit them deferred until judgment. Having considered the statements and exhibits on that basis, I grant the Claimant's application to rely upon both witness statements and the exhibits. There is some merit in the Defendants' stance that the application to adduce this further evidence could and should have been made more promptly following disclosure on 25 March. Overall, however, I am persuaded by the Claimant that the First Defendant could and should have disclosed the requested video recordings earlier than he did, given the nature of the grounds of challenge relating to what transpired at the inquiry generally, and not simply what occurred during the round table session. This would have given the Claimant more time to have considered the disclosed recordings and to transcribe them in advance of the hearing. For the reasons that will become apparent, I do not consider that the First Defendant is unfairly prejudiced by the timing of the application and the content of the statements and exhibits. I bear in mind that the Inspector himself has not had time to respond to what is in the statements; but the evidence is principally directed to transcribed extracts of what was said at the inquiry and the Claimant, First and Third Defendant have had the opportunity to make submissions about those extracts.
Factual Background
The Appeal Site
The Appeal Site consists of land previously used as a car garage, along with associated land on Newbridge Road. It slopes down towards the south where it adjoins the Industrial Estate. The main access route for the Appeal Site is from Newbridge Road to the north. There is also a right of access to the Appeal Site from the south over the Industrial Estate connecting to Brassmill Lane. It is this right of access which is the principal subject of this claim.
The access route over the Industrial Estate is currently subject to two gated entrances. There is a gate that separates the Industrial Estate from the Appeal Site itself. Access can be taken through this gate using a key. There is another gated entrance to the Industrial Estate itself where it joins Brassmill Lane. This entrance is used by all of the tenants of the Industrial Estate, as well as anyone using the right of way to the Appeal Site. Each tenant of the Industrial Estate and the owner/occupier of the Appeal Site has a key this gate so that they can obtain access out of hours, when the Brassmill Lane gate is closed and locked. At the hearing, Mr Jones referred the Court to the practical arrangements that apply to that access as had been in evidence at the inquiry in the proof of evidence of Nicola Perry of JLL.
The Right of Access
The Appeal Site's right of access over the Industrial Estate is secured in a deed of grant dated 11 May 1994. It is common ground that it binds mutual successors in title.
The references in the deed to: the ‘First Property’ and ‘First Owner’; and ‘Second Property’ and ‘Second Owner’, therefore refer respectively to: the Appeal Site and its owner; and the Industrial Estate and its owner.
By Clause 3.2.1 of that deed of grant, the First Owner is granted “the Second Rights”. The “Second Rights” are defined in Clause 2.15 to mean the rights granted by the Second Owner to the First Owner “details of which are set out in the Fourth Schedule”.
Paragraph 1 of the Fourth Schedule dealing with the...
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