The Queen (on the Application of Wet Finishing Works Ltd) v Taunton Deane Borough Council Strongvox Homes (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Singh |
| Judgment Date | 20 July 2017 |
| Neutral Citation | [2017] EWHC 1837 (Admin) |
| Docket Number | Case No: CO/6473/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 July 2017 |
[2017] EWHC 1837 (Admin)
The Honourable Mr Justice Singh
Case No: CO/6473/2016
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
PLANNING COURT
Bristol Civil Justice Centre
2 Redcliff Street
Bristol BS1 6GR
Mr Jack Parker (instructed under the Direct Access scheme) for the Claimant
Ms Jacqueline Lean (instructed by Law and Governance – Shape Partnership Services) for the Defendant
Mr Zack Simons (instructed by Ashfords LLP) for the Interested Party
Hearing date: 20 th June 2017
Approved Judgment
Introduction
The Claimant challenges the decision of the Defendant, dated 11 November 2016, to grant an application by the Interested Party to amend a previous planning permission, and creating a new agreement under section 106 of the Town and Country Planning Act 1990 ("the 1990 Act"), removing a requirement that the Claimant should be paid a Heritage Asset Contribution ("HAC") for restoration of a cloth finishing works called Tone Works or Tone Mill ("the Mill").
Permission to bring this claim for judicial review was granted after a hearing before Dingemans J on 3 March 2017.
Factual Background
On 26 July 2005 the Claimant company was incorporated and took ownership of the Mill, which is a derelict Grade II* listed building, with a view to its restoration.
In 2006 a company which is part-owned by the sole shareholder of the Claimant, Mendip Estates Limited ("MEST"), began buying property around the Mill with a view to generating sufficient funds to assist in the restoration and with a view to flood risk mitigation.
In 2007, MEST submitted an application for planning permission to build 130 residential homes on the adjacent site. That application was withdrawn when the Environment Agency declared a large part of the adjacent site to be a flood risk.
On 22 August 2011 the Interested Party, MEST and the Claimant submitted a planning application for the erection of 84 dwellings on a smaller part of the adjacent site. It is clear from the planning officers' report on that application that the primary issue for consideration was whether the proposed residential development would secure public benefits that would outweigh any identified conflict with planning policy. In addressing that issue the report concluded that the proposal represented "the most feasible option of bringing forward heritage led regeneration" to safeguard the Mill, which it described as an "important heritage asset." The report also concluded that "significant weight should be given in the balance of decision making to the combination of the cultural, economic and heritage benefits which will outweigh any identified conflict with policy."
The application for planning permission was granted by the Defendant on 3 April 2012.
The planning permission was accompanied by a section 106 agreement dated 30 March 2012. The parties to that agreement included the Defendant, the Interested Party and the Claimant. The agreement contained provision for payment of the HAC (as defined in clause 2.21) of £780,000 for the restoration of the Mill. It also provided for the payment of that money to be made by the Interested Party (as the current owner of the residential land), to the Defendant which would then forward it to the Claimant (as the current "Heritage Landowner" within the meaning of the agreement) for the purposes of restoration: see the owner's covenants in Sch. 1, in particular para. 1.1, and the Council's covenants in Sch. 3, in particular para. 3. As para. 1 of Sch.1 made clear, the Interested Party was not permitted to commence development until it had paid the HAC to the Defendant. However, it followed that the payment of the HAC did not have to be made within a specified time, so long as the development was not commenced for the purposes of the agreement (the meaning of commencement of development for those purposes was distinct from the meaning of that concept for the purposes of the planning legislation). There is a dispute between the parties about whether development ever commenced for the purposes of the 2012 agreement but it is not a dispute which I can or need to resolve for the purpose of the present claim for judicial review.
In June 2013 the Interested Party purchased the adjacent site with a view to developing it under the 2012 permission.
In fact during the period 2013–2015 the Interested Party did not commence any substantive development, save for some minor works on clearing of land, which meant that the Claimant could not begin restoration of the Mill by virtue of a clause in the section 106 agreement which prevented restoration until after the HAC had been paid.
On 6 October 2015 the Interested Party submitted an application under section 73 of the 1990 Act to vary the planning permission in respect of the adjacent residential site by increasing the dwelling numbers from 84 to 90.
On 27 November 2015 the Defendant issued a notice to the Claimant, requiring repairs to the Mill.
On 11 November 2016 the Defendant granted the Interested Party's application under section 73 of the 1990 Act. That is the decision under challenge in the present proceedings.
On the same date, 11 November 2016, a new section 106 agreement was made by the Defendant and the Interested Party. They were the only parties to the 2016 agreement. The Claimant was not a party to it. The new agreement dispensed with the HAC and instead included provision for a Heritage Protection Contribution ("HPC"), which required the money for restoration of the Mill (still in the sum of £780,000, as can be seen from clause 2.19) to be paid to the Defendant council, for its own use in restoration of the Mill, thus cutting the Claimant out of the process (unless it was directly instructed by the Defendant). The payment of the HPC had to be made within 1 year of the grant of the amended planning permission: see the owner's covenant in Sch. 1, para. 18. For the council's covenants see Sch. 2: they no longer included any obligation to pay the Claimant.
It is common ground in the present case that, although the Defendant consulted the Claimant in relation to the Interested Party's application to vary the 2012 permission, it did not consult the Claimant in relation to the section 106 agreement entered into in 2016. Mr Timothy Roper, the Director of the Claimant company, explains this at paras. 32–33 of his second witness statement. At paras. 37 and 39 he also sets out the prejudice, including financial prejudice, caused to the Claimant by the Defendant's failure to consult it on the new section 106 agreement.
Material Legislation
Under section 70(1) of the Town and Country Planning Act 1990 a local planning authority has power either to grant planning permission or to refuse it. If it grants planning permission it may do so "either unconditionally or subject to such conditions as they think fit".
Further provision is made in relation to conditional grants of planning permission by section 72.
Section 73, so far as material, provides that:
"(1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted.
(2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and –
(a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and
(b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. …
(4) This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun. …"
Section 106, so far as material, provides that:
"(1) Any person interested in land in the area of a local planning authority may, by agreement or otherwise, enter into an obligation (referred to in this section … as 'a planning obligation'), enforceable to the extent mentioned in subsection (3) –
(a) restricting the development or use of the land in any specified way:
(b) requiring specified operations or activities to be carried out in, on, under or over the land;
(c) requiring the land to be used in any specified way; or
(d) requiring a sum or sums to be paid to the authority … on a specified date or dates or periodically. …
(3) Subject to subsection (4) a planning obligation is enforceable by the authority …—
(a) against the person entering into the obligation and
(b) against any person deriving title from that person. …
(11) A planning obligation shall be a local land charge and for the purposes of the Local Land Charges Act 1975 the authority by whom the obligation is enforceable shall be treated as the originating authority as respects such a charge. …"
The Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No. 595) ("the DPMO") contains the following relevant provisions.
Article 2 is the interpretation provision. Unless the context otherwise requires, "planning obligation" means an obligation entered into by agreement or otherwise by any person interested in land pursuant to section 106 of the 1990 Act.
Article 7 of the Order sets out general...
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