The Queen (on the application of John Matthews and Mary Urmston) v City of York Council

Hearing dates: 16 and 20 July 2018

In this matter the Claimants challenge the Defendant's decision dated 21/11/17 to grant planning permission (the “2017 Permission”) to the Interested Party for the demolition of an existing care home and the erection of a new 64-bedroom care home with car parking and landscaping on land at 1 Fordlands Road, York (the “Site”). The existing care home on the Site was closed in 2012 and had provision for 31 beds. The Claimants each owns property close to the Site and are affected by the proposed development.

The Statement of Facts and Grounds (“SFG”) contains 5 Grounds of Challenge. The first two Grounds relate to the First Claimant only. On 7/02/18 HHJ M Raeside QC granted permission to bring these proceedings, giving permission to the First Claimant on all Grounds, and to the Second Claimant on Grounds 3 to 5. Ground 3 is no longer pursued.

Unfortunately, Mr Garvey was unable to attend on the second day of the hearing. This case was originally listed for 16 and 17 July. Unfortunately, I was unwell and the case did not proceed on 17 July. On enquiries being made as to suitable dates when all three Counsel were available and when the matter could be listed in front of me, it became clear that the matter was unlikely to resume until September. I then received a message to say that the parties could return on 20 July. It was only on 20 July that I discovered that Mr Easton was covering the case on behalf of Mr Garvey, and I am very grateful to Mr Easton for standing in in that way, and for his assistance in the case.

References in this Judgment to the Trial Bundle will be by Tab number followed by the page number, for example [8/104].

Ground 1: The First Claimant had a Legitimate Expectation of being notified about the date of the Planning Committee meeting, and this was breached.

The planning application was validated by the Defendant on 11/08/17. The First Claimant filed objections on 07/09/17 [2/54] objecting to the proposed name for the new home and alleging that insufficient car parking was provided to service the development. The Second Claimant filed objections on 26/10/17 [12/349–354] on a number of issues including harm to heritage assets, flooding issues, inadequate sequential test, the presence of bats, and highway safety and parking. She too asserted that the proposed parking provision within the development was inadequate. The Defendant's position is that by email dated 9/11/17, all objectors were notified of the date of the planning meeting. Mr Matthews denies having received that email.

The Council's Statement of Community Involvement (“SCI”) dated December 2007 includes the following:

“Being Involved at the Planning Committee

10.10 If you have commented on an application being considered by the Area or Main Planning Committee, the Council will advise you about the time and place of the meeting. The dates of the meeting are also available on the Council's website ( www.york.gov.uk), and are displayed on the Notice Board outside the Guildhall. ……” [1/33]

There is no dispute in this case that Mr Matthews, having filed written objections, had a legitimate expectation of being notified about the date of the Planning Committee meeting. Mr Matthew's evidence is that he received no communication from the Council between 26 September and 21 November, when he received the decision notice. He states that he has checked his emails thoroughly (including junk files) and can find no record of an email of 9/11/17 from the Council, and nor did he receive such an email and delete it. He states that had he known about the meeting, he would have taken the opportunity to speak to the Committee Members against the scheme, and that he is significantly prejudiced as a result of being deprived of this opportunity to address members who would have been able to consider his objections following his oral presentation [12/497: Witness Statement of John Matthews: paragraphs 6–8].

The Defendant's position is that Mr Matthews was duly notified of the Planning Committee meeting. In her Witness Statement, Rachel Smith, a Development Management Officer at the Council, and the case officer in relation to the planning application leading to the 2017 Permission, states that the Council's computer system shows that on 9 November 2017, seven emails were sent, (six to the objectors, and one to the developer's agent), advising them of the Planning Committee meeting [12/157: paragraph 4]. She produces screenshots from the Council's computer system as evidence of that fact. At [12/206] is a screenshot showing that the document OBJPT (the letter advising objectors of the committee date and site visit) was sent to 6 recipients on 9/11/17. There is a further document AGTPT sent on the same date, which Mr Ponter advised me means that the relevant letter was sent to the agent rather than to an objector.

The Council does not keep copies of all emails sent as to do so would overload the data storage capacity. Accordingly, the system only holds the data (date of meeting and address) that was inserted within the standard notification letter template [12/157: Witness Statement of Rachel Smith, paragraph 5]. Mr Garvey submitted that the Claimant's evidence is quite clear that he was not notified, and that the Defendant's evidence to the contrary is unsatisfactory. He submitted that the screenshots do not provide full information as to what was sent and to whom. He pointed to the fact that no one from the Council is saying “I sent the email, and here it is”. He submitted there is no evidence that the email was in fact sent and that at best the court is looking at an internal automated system saying that it appears to have been sent.

There is no dispute that Fulford Parish Council did receive the email of 9/11/17 notifying them of the Planning Committee meeting. Mrs Urmston confirmed that on the first day of the hearing. Mr Garvey pointed to the fact that in the screenshot at [12/203A], there is a tick box column headed “In Error”, which has a tick against the email of 9/11/17 to Fulford Parish Council, but not for any of the others, and yet Fulford Parish Council did receive its email. He submitted that the Council's evidence is far from satisfactory, and that I should accept the clear evidence from Mr Matthews that he was not notified, and that he has checked his email, including junk folders.

In between the first day of the hearing on Monday 16 July, and the second day of the hearing on Friday 20 July, a Witness Statement of Mr Eamonn Keogh dated 18 July 2018 was filed and served on behalf of the Interested Party. Mr Keogh is the planning agent for the Interested Party. There was no objection to the introduction of this further evidence at that stage. In his Witness Statement Mr Keogh confirms that he received an email from the Council timed at 10:26 on 9 November 2017. The email is exhibited to his Witness Statement and simply reads “Please See Attached”. He confirms that ‘the attached’ was a letter, also exhibited to his Witness Statement, advising him of the time and place of the Planning Committee meeting. In addition, Mrs Urmston attended the second day of the hearing with a copy of the similar email and letter which were received by Fulford Parish Council. The email to Fulford Parish Council is timed at 10.28 on 9 November 2018. It is noteworthy that the sent times recorded on each of those emails corresponds with the times ascribed to those emails on the Council's system [12/206A]. Whilst there is no dispute that Mrs Urmston was notified of the Planning Committee meeting and indeed attended it, there is no evidence either way as to whether she personally received the email of the 9 November which, according to the Council's automated system, was sent to her. The email which she produced to show that the documents had been served on the Fulford Parish Council, includes an email from the Clerk of the Parish Council forwarding it to members including Mrs Urmston. At the very least she was notified via the Parish Council. However, she has never asserted in evidence that she was not notified personally.

One of the points that Mr Garvey sought to make to persuade the court that Mr Matthews' evidence on this point ought to prevail over the evidence of an automated system, was that the Council had failed to adduce any evidence that any of the alleged recipients of the seven emails sent to objectors on 9/11/17 had been received. This is a point he made in his Reply to the Defendant's Summary Grounds of Resistance (“SGR”) and the Interested Party's Summary Grounds (“SG”). Plainly this point has fallen away. Nor do I attach any significance to the tick in the “in Error” column on [12/203A], given that I now have evidence that 1 of the 7 e-mails was received by someone other than Fulford Parish Council.

Mr Ponter, for the Defendant, submitted that the court now has clear evidence that two of the emails were sent and received, namely those to the Parish Council and to Mr Keogh. Leaving aside Mr Matthews, of the other four recipients, none has complained to the Council that he or she was not notified of the meeting. In those circumstances, Mr Ponter submitted that the preponderance of the...