The Queen (on the Application of D Morgan Plc) (Claimant) The Welsh Ministers (First Defendants) Flintshire County Council (Second Defendants)
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Bidder QC |
| Judgment Date | 05 July 2011 |
| Neutral Citation | [2011] EWHC 1680 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 05 July 2011 |
| Docket Number | Case No: CO/1728/2011 |
[2011] EWHC 1680 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at
Wrexham County Court
Handed down at
Cardiff Civil Justice Centre
His Honour Judge Bidder QC
(Sitting as a Judge of the High Court)
Case No: CO/1728/2011
Anthony Crean Q.C. (instructed by Aaron & Partners LLP) for the Claimant
Jonathan Moffett (instructed by The Treasury Solicitor) for the First Defendants
Paul Tucker Q.C. (instructed by Barry C. Davies, Head of Legal and Democratic Services,
Flintshire County Council) for the Second Defendants
Hearing dates: 23 rd June 2011
This is an application for judicial review of the decision dated 9 th December 2010 of Mr. Clive Nield, an appointed Inspector exercising powers transferred to him by the First Defendants, to refuse an application for costs made by the Claimant pursuant to section 320 and Schedule 6 of the Town and Country Planning Act 1990 and section 250 (5) of the Local Government Act 1972.
Permission was granted by His Honour Judge Vosper QC on the 31 st March 2011 upon grounds 2 and 3 of the grounds of claim. The Claimant has abandoned ground 1 in the light of that limited permission.
The Second Defendants are the statutory authority with responsibility for the enforcement of planning control in the area including Sea View Farm, Old Aston Hill, Ewloe in Flintshire ("The Appeal Site"). The Claimant is the freehold owner of the appeal site.
On 4 April 1978 planning permission was granted by the Second Defendants' predecessor Council for the tipping waste at the appeal site. Tipping began after 1978 and continued for a number of years. In 2004 two enforcement notices were served, appealed and withdrawn.
Two further enforcement notices dated 4 January 2007, in relation to an embankment at the appeal site, were served. In addition, on 6 December 2004 the Second Defendants issued one enforcement notice ("the site B notice") in which it was alleged that the deposit of waste on the land was in excess of the final levels permitted by the 1978 planning permission.
The site B notice alleged:
"the deposit of waste … in excess of the final levels permitted by planning permission code number 4/ 1/4731 dated 4th of April 1978 ("the planning permission"). Such levels being the adjacent field levels, and to the profile shown on the drawing entitled "site B. Plan showing site proposed tipping at Sea View farm: Aston Hill: Ewloe. For M/S D Morgan (Plant Hire) Ltd" ("the approved drawing") and stamped "this is a certified copy of the plan referred to in the planning decision number 4/1/4731" and date stamped received by Alyn and Deeside District Council Development Control Department on 23rd of November 1977."
The relevant requirement of the site B notice was to:
"Remove all deposits of waste materials in excess of that permitted under the planning permission, so as to reduce the level of the land to that of the existing adjacent field levels (for the avoidance of any doubt, those fields are shown hatched on the attached plan) and to the profile shown on the approved drawing;'
The notices issued in respect of the embankments require the removal of the embankment from a date linked with the date specified for the work to be done under the site B notice.
The Claimant appealed against the enforcement notices on a number of grounds, including that the notices were a nullity and, in addition, that tipping in excess of the planning permission had not occurred.
By letters of 25 February 2005 and 12 September 2007 the Claimant's solicitors wrote to the Second Defendants inviting them to withdraw the site B notice on the grounds that it was legally defective. The Second Defendants refused to do so.
On 25 June 2010 the Claimant's solicitors wrote to the Second Defendants enclosing a copy of an opinion written by Leading Counsel which sets out the legal basis for the contention by the Claimant that the site B notice was legally defective. Again, the Second Defendants were invited to withdraw the site B notice. Again there was a refusal to do so
Finally at the Claimant's instigation a meeting was held between the Claimant and the Second Defendants at which meeting the Second Defendants were again invited to withdraw the notice. There was a further refusal.
In the autumn of 2010 a public inquiry had been arranged. At the Claimant's instigation the Inspector was invited to conduct a preliminary hearing in which he was asked to consider only the legal challenge to the validity of the enforcement notices. The Inspector agreed with that course. The first part of the public inquiry dealing with the legal arguments took place in October 2010. Following the adjournment of the inquiry the Inspector notified the parties that he was minded to allow the appeals on the basis that the site B enforcement notice was a nullity. It was and is agreed that if the site B notice was a nullity, so were the two embankment notices. Following that notification the Claimant made a written application for costs.
THE DECISIONS
In his substantive decision on the validity of the site B notice, the Inspector rejected the Claimant's argument that the notice was not complete within its four corners. It referred to the 1978 planning permission and the approved drawing and the Inspector considered that even though those documents were not attached to the notice, they were in the public domain and there was no doubt as to which documents reference was being made.
However, the Inspector acceded to the Claimant's second argument, namely, that the notice failed to specify the requirements with suitable precision. I quote from the decision letter:
"12 The appellant's second argument in respect of nullity is that the notice fails to specify the requirements with suitable precision. The first (and main) requirement is to "reduce the level of the land to that of the adjacent field levels (for the avoidance of any doubt, those fields are shown hatched on the attached plan) and to the profile shown on the approved drawing". However, the adjacent field levels vary considerably and the approved drawing contains serious shortcomings such that it is impossible to know with any degree of certainty to what levels the land has to be reduced.
13 The approved drawing contains a site plan with a number of spot levels and four cross sections. All levels are expressed in metres measured downwards from an unknown datum level, and so, on its own, the approved drawing is completely incapable of specifying what amount of material has to be removed from the site and what the final finished ground levels should be. The Council argues that it is possible to calibrate the drawing with a reasonable level of accuracy either by reference to another survey plan (the 1993 Robinson Fletcher plan) or by a limited amount of survey work on site. By one or other of these means it is undoubtedly possible to produce aninterpretation of the approved drawing. However, there is not a single definitive interpretation but rather a range of interpretations, as there is inevitably an element of inaccuracy in correlation which, in this case, is quite significant.
14. If it is necessary to use the 1993 survey plan in order to interpret the approved drawing then the notice is a nullity as it requires reference to a plan that is not within the four corners of the notice. Whether correlation is by means of the 1993 survey plan or new survey work undertaken on the site today, I consider the notice to also be a nullity on account of the considerable degree of uncertainty inherent in interpreting the approved plan to determine what has to be done to meet the specified requirements of the notice. The range of interpretation of required land levels is so wide as to render the notice hopelessly uncertain in its specification of requirements."
The parties made written submissions to the Inspector on the issue of costs. The Claimant contended, relying on Circular 23/93, Awards of Costs Incurred in Planning and Other (Including Compulsory Purchase Order) Proceedings, that the Second Defendants had behaved unreasonably and caused the Claimant to incur unnecessary expense in the appeal process.
The two grounds of the application were that, first, that the third party should have known the notices were a nullity and should not have issued them and second, that the Council should have heeded the advice provided by the applicant on many occasions that the notices were a nullity. In refusing the application for costs on behalf of the Claimant, the Inspector gave his reasons as follows:
"6. The applicant argued nullity of the site B notice on two grounds: firstly that the notice was not complete on its face; and, secondly, that it failed to specify the requirements with sufficient precision. I have found against the first argument but in favour of the second, largely on account of the hopeless lack of precision of the plan incorporated in the 1978 planning permission. Although the plan could be interpreted by reference to another plan or by carrying out a new survey, any interpretation would be subject to a range of ground levels rather than the precise level and so would not provide a level of precision and certainty appropriate for an enforcement notice.
7. The Council maintains that the interpretation is sufficient to demonstrate, even on the most favourable assumptions, that the landfill levels significantly...
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