The Queen (on the application of Mrs Emma Newey) v South Hams District Council
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 27 July 2018 |
| Neutral Citation | [2018] EWHC 1872 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1138/2018 |
| Date | 27 July 2018 |
[2018] EWHC 1872 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Bristol Civil Justice and Family Centre
Bristol, BS1 6GR
Mr Justice Garnham
Case No: CO/1138/2018
and
Mr Charles Streeten (instructed by Shakespeare Martineau) for the Claimant
Mr Philip Robson (instructed by South Hams District Council) for the Defendant
Hearing dates: 13 June 2018
Judgment Approved
Introduction
Mrs Emma Newey is the owner of Grants Cottage, 6 Brown's Hill, Dartmouth. She operates the cottage as a holiday home. That cottage is adjacent to 14 Broadstone, Dartmouth. Mr and Mrs Stewart Killick own that property and obtained planning permission, on appeal, for the erection of one residential dwelling on the land.
By these proceedings, Mrs Newey seeks to challenge decisions dated 7 February 2018 by South Hams District Council, first to approve the Construction Method Statement (the “CMS”) provided for by Condition 4 of the planning permission and second, to vary Condition 3 of the same permission such that the condition requires a full structural engineering report for construction above slab level rather than before commencement.
Permission to apply for judicial review was granted by Supperstone J and came on for hearing before me on 13 June 2018. I had the benefit of skeleton arguments and detailed oral submissions by Charles Streeten for the Claimant and Philip Robson for the Defendant Council. I am grateful to them for their considerable assistance.
The History
This history is not in dispute and the following is taken substantially from the Claimant's Statement of Facts and Grounds.
Planning permission was granted on appeal for the erection of one new build residential dwelling. A Variation Permission was subsequently granted pursuant to s 73 of the Town and Country Planning Act 1990 (‘the TCPA’). That permission imposed conditions including:
“3. No development shall take place until full details (including a structural engineer's report and calculations) of all new retaining walls and steps, together with any groundworks or foundations adjacent to the boundaries of the site have been submitted to and agreed in writing by the Local Planning Authority. The development shall thereafter be carried out strictly in accordance with the approved details.
Reason: To ensure the safety of the proposed works.
4. No development shall take place, including any works of demolition, until a Construction Method Statement has been submitted to and approved in writing by the Local Planning Authority. The approved statement shall be adhered to throughout the construction period. The Statement shall provide for: details of the means of transport of materials to and from the site including the frequency of such movements: loading and unloading of plant and materials; parking of vehicles of site operatives and visitors; storage of plant and materials used in constructing the development. The development shall thereafter be carried out strictly accordance with the approved method statement.
Reason: To ensure that the construction phase of the development does not result in harm to the living conditions of occupiers adjoining properties and the impact on the surrounding road network can be adequately controlled.”
On 11 December 2017, the Interested Party applied to the Council for the approval of a construction method statement required by Condition 4. A document entitled “Delivery Method Statement for Construction of New Dwelling at 14 Broadstone Dartmouth” was submitted with that application.
The effect of the CMS is that three scaffolding gantries including conveyor belts of approximately 3m x 3m in area have been erected, with a high-level access bridge supported between the gantries. Grants Cottage, like other neighbouring residential properties, now has scaffolding towers and conveyors enclosed in plywood running in front of their first-floor windows. This elevation is the only source of natural light to the habitable rooms on the upper floors of Grants Cottage. The construction works are intended to take 60 weeks.
The Council did not consult neighbours before determining the Approval of Reserved Conditions application (“ARC application”). The matter was determined by an officer under delegated powers. That officer did not produce a report or record the reasons for approving the application.
On 4 December 2017, the Interested Party made a further application pursuant to s 73 TCPA. This amended Condition 4 to read “ the development shall be carried out in accordance with the approved Construction Method Statement (as agreed under 4191/17/ARC) throughout the construction period.” The reason given for the condition remained unchanged. In addition, Condition 3 was amended so that details of new retaining walls and steps (including a structural engineer's report and calculations) were not required “ prior to development above slab level”. The reason for this condition also remained unchanged.
Construction work has now commenced on site. The scaffold towers have been erected, and the Claimant claims that, in consequence, she is losing business.
The Statutory Scheme
There is no dispute about statutory scheme applicable to this case.
Section 57 of the 1990 Act requires planning permission for the development of land. Section 72 allows for the grant of planning permission subject to conditions. Those conditions must be imposed for a planning purpose, must fairly and reasonably relate to the development permitted, and must be reasonable ( Newbury DC v Secretary of State for the Environment [1978] 1 WLR 1241 at 1248).
A condition may reserve matters for subsequent approval by the local planning authority. Applications for the approval of such matters must comply with article 27 of the Town and Country Planning (Development Management Procedure) Order 2015 (‘the DMPO’).
There is no statutory duty to give reasons for the grant of planning permission. Local planning authorities are, however, required to give reasons for refusing to grant planning permission, or for the imposition of conditions (see article 35(a) of the DMPO). As the Council puts it in Summary Grounds of Resistance, “ the reasons for imposing a condition should identify the demonstrable planning harm which the condition is seeking to obviate” ( Times Investment Ltd v Secretary of State for Environment [1990] JPL 433).
Pursuant to s 73 of the 1990 Act, a local planning authority may grant planning permission to develop land without compliance with conditions previously attached. The power under s 73 enables a local planning authority to vary the conditions attached to a permission and to attach any new conditions, provided the conditions attached could have been imposed on the original permission ( R (Arrowcroft Group Plc) v Coventry City Council [2001] PLCR 7).
A successful s 73 application results in the grant of a new permission and must therefore be determined according to the current development plan and other material considerations (see Pye v Secretary of State for Environment [1998] 3 PLR 72).
Section 70(1) TCPA covers the determination of applications:
“(1) Where an application is made to a local planning authority for planning permission—
(a) subject to section 62D(5) and sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit; or
(b) they may refuse planning permission.”
Section 92(1) and (2) TCPA provides for the grant of outline planning permission, reserving some matters for later approval:
“(1) In this section and section 91 “outline planning permission” means planning permission granted, in accordance with the provisions of a development order, with the reservation for subsequent approval by the local planning authority, the Welsh Ministers or the Secretary of State of matters not particularised in the application (“reserved matters”).”
(2) Subject to the following provisions of this section, where outline planning permission is granted for development consisting in or including the carrying out of building or other operations, it shall be granted subject to conditions to the effect—
(a) that, in the case of any reserved matter, application for approval must be made not later than the expiration of three years beginning with the date of the grant of outline planning permission….”
Section 93(2) states:
“(2) For the purposes of section 92, a reserved matter shall be treated as finally approved—
(a) when an application for approval is granted, or
(b) in a case where the application is made to the local planning authority and on an appeal to the Secretary of State against the authority's decision on the application the Secretary of State grants the approval, when the appeal is determined.”
Grounds
The Claimant advances three grounds of challenge. First, she argues that the Council failed to keep a record of the reasons for the delegated decision to approve the application approving details observed by Condition 4, contrary to the duty imposed by regulation 7(3)(b) of the Openness of Local Government Bodies Regulations 2014 and or the common law.
The second ground, is that the Council, in approving that decision, failed to have regard to the purpose for which Condition 4 of the First Variation Permission was imposed, and failed to have regard to the harm that the proposed construction method would cause to residential amenities and to the alternative construction methods that would reduce or avoid such harm. The amenities referred to include the loss of light to Grants Cottage, and the noise,...
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