The King on the application of Velayuthan v London Borough of Southwark
| Jurisdiction | England & Wales |
| Judge | Mr C M G Ockelton |
| Judgment Date | 23 May 2023 |
| Neutral Citation | [2023] EWHC 1396 (Admin) |
| Docket Number | CO/11/2023 |
| Court | King's Bench Division (Administrative Court) |
and
[2023] EWHC 1396 (Admin)
Mr C M G Ockelton
(Sitting as a Deputy Judge of the High Court)
CO/11/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr M Fry (by Direct Access) appeared on behalf of the Claimant.
THE DEFENDANT did not appear and was not represented.
Mr K Leigh (by Direct Access) appeared on behalf of the Interested party.
THE DEPUTY JUDGE:
There is a vacant plot of land adjacent to 19 Village Way, London SE21 7AN. That plot of land was part of the garden and associated grounds of the house at 19 Village Way, but is now a separate property and is the subject of a grant of planning permission for two dwelling houses made on 11 June 2020, development under which grant has, I am told by Mr Leigh on behalf of the developer, not yet begun.
During the course of 2022, an application was made for modification of the conditions applicable to that planning permission by a change in the plans to which the new houses were to be constructed. Amongst the significant changes was that they were going to be set into the ground to a depth of 2.5 metres rather than standing on the ground level.
The application was made, under section 73 of the Town and Country Planning Act 1990, as a modification of conditions application and it was the subject of a grant of permission, which was dated as having been notified on 9 September 2022, although the evidence clearly is that it was made on 11 November 2022 and, apparently, notified on that date.
The claimant is the owner and occupier of 19 Village Way, the original older premises to which I have already referred. He applies for judicial review of the decision to grant the variation under section 73. Permission was granted by Mr Timothy Mould KC, sitting as a Deputy Judge of this court, and two grounds are argued in this claim. Each of them – as I think it is right to say, Mr Fry, who appears on the claimant's behalf, would acknowledge – is a technical ground. They are grounds that go to procedure rather than to substance.
Mr Leigh, who appears for the interested party, the developer, points out that it may be that the claimant would wish to take other points of substance, but I am concerned with the grounds of this application and, specifically, the grounds upon which permission has been granted.
Those grounds are, if I may summarise them, as follows. First, that there was procedural unfairness in arriving at the decision, because the council failed to consult the claimant, who is, as I have explained, owner and occupier of the neighbouring property to the development site.
The second ground is that the notification of the decision is defective, because it cites a date which is not the date on which the decision was notified: it is a date which appears to have nothing to do with the case at all, but is, in any event, wrong. Those are the two grounds upon which permission was granted.
The local planning authority, the London Borough of Southwark, as maker of the decision, had indicated at an early stage that they would concede both those points, although they had also indicated that they would not concede any of the other points made by the claimant in his pre-action protocol letter.
Following the grant of permission, a consent order was drawn up in which the defendant local planning authority did indeed concede those points and conceded that the decision should be set aside for error of law, basing itself on those grounds.
Following a second draft consent order, the defendant has been excused from further participation in these proceedings, with an order as to costs made by a court officer authorised to do so, and the proceedings are now defended by the interested party, the prospective developer.
The two grounds upon which permission is granted are both matters which can be dealt with briefly, although the issues they raise are of some importance. The first relates, as I have said, to consultation. The claimant's case is that he should have been, but was not, specifically invited to provide input into the decision-making process. The relevant legislation is the Town and Country Planning (Development Management Procedure) (England) Order 2015, as amended, SI 595/2015. Article 15 begins by providing that an application for planning permission must be publicised by the local planning authority to which the application is made in the manner prescribed by that Article. The relevant provisions require that, in the case of an application of this sort, there be publicity by displaying at least in one place on or near the land to which the application relates or by serving the notice on any adjoining owner or occupier and also notification in the press.
The position indicated by the pleadings, is that the local planning authority, the defendant in this case, asserts that notification was given at the very least by notice. That view of the matter is relied upon by the interested party, who, of course, has no particular knowledge of the notification procedures adopted.
The claimant seeks to challenge the local planning authority's assertion that notice was duly given. In my judgment, the claimant is not in a position to pose any such challenge without clear evidence to support it. There is no evidence to support it in this case. In these circumstances, in a judicial review, I am entitled to rely on the defendant's position which is, and because it is, not self-contradictory.
I, therefore, conclude that there is no reason for saying in these proceedings that notification was not given in accordance with the statutory requirements imposed by Article 15.
That, however, is not or may not be the end of the matter. The London Borough of Southwark has, as it is required by statute to do, issued a document entitled, “A Statement of Community Involvement in relation to Planning Matters”. In that statement, issued in January 2008, it sets out, again, as it was obliged to do, the approach it will take in consulting local interests in the course of and before making planning decisions. It indicates that it will go further than is required by statute. “We genuinely go beyond the minimum” is the phrase used. In the course of the document, the local authority indicates that it will meet the statutory requirements but will also consult neighbours in relation to planning applications.
Contrary to Mr Leigh's submissions, I do not accept that a reader of that document would think that it was merely saying that the council would carry out the statutory requirements. It seems to me that it clearly indicates that the council will do more than that and will consult neighbours whether or not the stature requires it. In other words, the council is imposing upon itself, by its own adoption of the policy, a duty to go beyond what the statute requires and specifically a duty to consult neighbours.
The council accept, for the purposes of these proceedings, and it is part of the statement of reasons behind the consent order, that they did not specifically consult the claimant in this case. They say that they met the statutory requirements by notice, but they accept that they did not consult him as they ought to have done.
The question then is whether their failure to consult, in accordance with their self-imposed obligations, amounts to an unfairness of procedure of the sort on which the claimant relies. It cannot be said properly that the statutory procedure was not complied with: but was there also another factor in the case which made it unfair to proceed with this decision without having specifically consulted the claimant?
Mr Leigh's position is that there is no basis for saying that the claimant or anybody else in his position had a legitimate expectation that the council would go beyond what was required by statute. He reminds me that the provisions of planning law embodied in the statutes and the statutory instruments are a complete code. However, my attention has been drawn to the decision of the Court of Appeal in the Crown (on the application of Majed) v. London Borough of Camden [20009] EWCA (Civ.) 1029. This is a case which, as summarised by Lang J in Crown (on the application of Viera and Saph) v. London Borough of Camden ...
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The King on the application of Whiteside v London Borough of Croydon
...such as R (on the application of Majed) v Camden LBC [2009] EWCA Civ 1029 and R (on the application of Velayuthan) v Southwark LBC [2023] EWHC 1396 (Admin) simply do not 46 As to conspicuous unfairness as a basis the duty to consult the claimant, this will only arise in “exceptional cases......