The Queen (on the Application of Tws) v Manchester City Council and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Richards
Judgment Date20 March 2013
Neutral Citation[2013] EWCA Civ 484
Date20 March 2013
Docket NumberCase No: C1/2013/0310

[2013] EWCA Civ 484

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

(MR JUSTICE LINDBLOM)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Richards

Case No: C1/2013/0310

The Queen (on the Application of Tws)
Appellant
and
Manchester City Council & Anr
Respondents

Mr Hugh Richards (instructed by Richard Buxton Environmental & Public Law) appeared on behalf of the Appellant.

Mr R Drabble & Mr S White (instructed by Manchester City Council) appeared on behalf of the Respondents.

Lord Justice Richards
1

This is a renewed application for permission to appeal against an order of Lindblom J dismissing in material part a claim for judicial review of the grant of planning permission by the respondent, Manchester City Council, for the development of a football stadium at Moston. The factual background is set out fully and clearly in the judgment of Lindblom J. The matters on which permission to appeal is sought are twofold.

2

The first matter forms part of what was ground one before the judge. It was argued under ground one that the council ought to have expressly restricted the use of the stadium by limiting the number of days in a year in which it could be used for football matches or other large-scale events, and the hours of such use. The argument was put in a number of ways.

3

The first proposition was that a condition placing specific limits on the number of days and hours of use of the stadium was necessary in order to restrict the planning permission to the development that had been proposed and consulted upon. The judge rejected that argument for reasons set out in the part of his judgment ending at paragraph 8He said inter alia that the applicant had not proposed a specific number of days or hours for use of the stadium but had indicated in general terms how often it expected the stadium to be used. For example, reference had been made to use on approximately 30 to 50 days a year. The transport assessment had assumed home matches on 28 or so occasions a year; and the noise assessment had assumed use on Saturdays and Sundays up to 20 times a year and on mid-week evenings up to 10 times a year. Those broad indications of intended use did not require the imposition of the condition contended for. No issue is now taken with that part of the judge's decision, but I have mentioned it because what is said about intended use in the assessments forms part of the background to the second way in which the argument was put.

4

The second proposition before the judge was that the planning permission was granted for more than had been assessed or, as the judge put it, that the council failed to tie the development to the proposals assessed. The judge turned to this at paragraph 84 of his judgment, saying he saw no force in the argument. The assessment of noise and traffic impacts was based on assumed levels of use, but the assumptions were not fixed nor were they exactly the same in each assessment; nor were the conclusions said to depend critically on the assumptions made, and there was nothing to compel the conclusion that if, say, 50 events were to take place in the stadium each year rather than about 30, this would cause undue disturbance to local residents or harm to the local environment. It was impossible to say that a condition restricting the number of matches or events to a particular level was imperative, or that it was irrational not to impose one. At paragraph 86 the judge considered the case of R (Midcounties Cooperative Limited) v Wyre Forest District Council [2010] EWCA Civ 841 on which the applicant relied, but for reasons the judge gave in that paragraph he considered the Midcounties case to be materially different and not to assist the applicant, holding that it turned on the principle that permission must not be granted for more than is sought. I should add that the judge went on in paragraph 86 to hold that even if he was wrong in saying that there was no requirement on the council to limit the number and duration of events in the stadium, there was in fact a section 106 agreement which was varied to provide an enforceable limit of 50 days a year on which the stadium pitch could be used for an event, and this coincided with the upper limit indicated in the planning statement and...

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