The Queen (on the Application of TW Logistics Ltd) Tendring District Council v Anglia Maltings (Holdings) Ltd (Interested Party)

JurisdictionEngland & Wales
JudgeMR JUSTICE SILBER
Judgment Date09 May 2012
Neutral Citation[2012] EWHC 1209 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/11946/2010
Date09 May 2012

[2012] EWHC 1209 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Case No: CO/11946/2010

The Queen (On the Application of TW Logistics Limited)
Claimant
Tendring District Council
Defendant
and
Anglia Maltings (Holdings) Limited
Interested Party

David Forsdick (instructed by S. J. Berwin) for the Claimant

David Altaras (instructed by Holmes and Hills LLP of Braintree) for the Defendant

Rhodri Price Lewis QC (instructed by Howes Percival) for the Interested Party

Hearing dates: 21 and 22 March 2012

Further Written Submissions served on 28 and 29 March 2012

MR JUSTICE SILBER

I. Introduction

1

TW Logistics Limited ("the claimant") is the owner and operator of Mistley Port in Essex, which as its name shows comprises a port within the Manningtree and Mistley Conservation Area. According to the claimant, it and the appropriate local authority Tendring District Council ("the Council") have diametrically opposed views as to the future of the quayside from which the Port operates with the claimant seeking its protection and enhancement for port-related uses, while, according to the claimant, the Council is seeking the mixed use (non-port) regeneration of the area.

2

The claimant contends first that this approach of the Council is contrary to the core premise on which the development plan for the area was based and second that this approach was comprehensively rejected by the local planning inspector in the formulation of the local planning policies applicable to this area in the Tendring Local Plan 2007 ("the Local Plan"). The case of the claimant is that the Council has now sought to achieve its aim of being able to adopt this approach by imposing material considerations of importance in planning decision-making by its adoption of the Manningtree and Mistley Conservation Area Management Plan ("the CAMP"), which relates to a designated conservation area and which includes the relevant parts of the Port.

3

Mr. David Forsdick, counsel for the claimant, submits that the Council has thereby sought by implementing the CAMP to make it easier for it to accede to planning applications for non-port related or mixed use activities in the area of Mistley Port because by the terms of the CAMP, the Council has sought to regard these matters as being of importance in making decisions in planning issues, notwithstanding that such matters are inconsistent with the Local Plan. It is said that in adopting the CAMP, the Council has failed to take into account the claimant's objections to the draft CAMP and the recommendations of its own consultants in relation to the Port. The basis of this submission is that once the CAMP is adopted, the weight to be attached to it would be entirely for the Council. So the case for the claimant is that it is necessary to challenge the CAMP at this stage in order to prevent it being used by the Council as a justification for departing from the policies and the development plan.

4

It is also said that the Council unlawfully failed to consult further with the claimant contrary to a legitimate expectation that it would do so and that the decision to adopt the CAMP was taken by the portfolio holder on the Council even though there was a real risk of pre-determination and bias.

5

The claimant seeks to judicially review this decision to adopt the CAMP and in particular it seeks to obtain orders that parts of the CAMP that are inconsistent with the continuation and expansion of port-related activities should be deleted. Mr Stuart Isaacs QC sitting as a Deputy Judge, gave the claimant permission to pursue its application, which is opposed not only by the Council but also by Anglia Maltings (Holdings) Limited ("the Interested Party"), which is the owner of Edme Industrial site, Thorn Quay warehouse and other premises, which are also within the Conservation Area. The Interested Party is a major employer and manufacturer in Mistley.

6

The Council and the Interested Party contend that all these criticisms of the CAMP are misconceived because first the claimant had misunderstood the purpose of the CAMP, which is merely a management plan for the conservation area; and second, in any event, the CAMP does not undermine or contravene any policy contained in the Local Plan, but rather it is underpinned by the policies in that Plan and driven by the statutory duties imposed on the Council by section 71 of the Planning (Listed Building and Conservation Area) Act 1990. ("the LBCAA"), which is set out in paragraph 18 below.

II. The Statutory Regime

7

There was a comprehensive statutory code relating to the procedure for the development of land where the issues include the protection of its existing character. The code is to be found in the Town and Country Planning Act 1990, ("TCPA"), the Planning and Compulsory Purchase Act 2004 ("the 2004 Act") and the LBCAA. The legislation deals with both the formulation and the adoption of planning policies and the decision-making on applications for planning permission. A conservation area is provided with an added layer of protection, which affects both of these different activities.

8

A development plan is required to be in place. The 2004 Act provided that it should consist of, first, a regional spatial strategy (in this case for the East of England although these strategies have now been abolished by section 109 of the Localism Act 2011) and second a set of local development plan documents ("DPDs") prepared and adopted by the local authority. They would include a core strategy, which would set out the basis spatial strategy and potentially a site allocation development plan document which would allocate specific sites for specific development and uses. The 2004 Act and regulations made under it provide for the adoption of supplementary planning documents ("SPDs") through a statutory process involving public consultation and they were required to be consistent with the policies in the DPDs.

9

Pending the formulation and adoption of the DPDs, the Local Plan ("LP") policies were generally saved. The process for the adoption of a LP was to start with the publication of a draft LP by a local authority and which was to be followed by an opportunity for objections to be made to it and the holding of a statutory inquiry into the objections. The independent inspector could then make binding recommendations to the local authority as to the changes necessary to the LP to overcome the objections. It is common ground that there are decided authorities which show the importance of local authorities adopting planning policies through the statutory process and not otherwise. Local authorities were also entitled to issue non-statutory supplementary plans and policies, which have now been superseded by SPDs; see paragraph 8. Such documents are required to be an elaboration and supplementary to the Local Plan and not to be a substitute for them.

10

So the plan-making process requires not merely a statutory process in the course of which the appropriateness of draft policies is properly tested, but, also a requirement that the adoption of the local plan is in accordance with the recommendations of the Independent Inspector. The Local authority is required to set out it is policies in the LP: S17 (3) of the 2004 Act. It is a fundamental feature of the system that each level of plan policy is in conformity with the level above and in particular for the SPD to be consistent with the LP (see, for example, R (Pye) v Oxford City Council [2002] EWCA Civ 1116).

11

In development control, the decision-making process which involves deciding whether or not to grant planning permission is governed by section 70(2) of the TCPA 1990, which provides in relation to an application for planning permission that:—

"In dealing with such an application the authority shall have regard to-

the provisions of the development plan, so far as material to the application,…

(c) any other material consideration".

12

Similarly, section 38(6) of the 2004 Act explains how regard is to be made to the provisions of the development plan and it states that:—

"If regard is to be had to the development plan for purpose of any determination to be made under the planning Acts, the determination must be made in accordance with the plan unless material considerations indicate otherwise".

13

It follows that on any application for planning permission in and around the Port, the starting point for the Council has to be the local plan and that means the entire policy framework within the LP while the term "material considerations" for the purpose of either of these provisions may include any consideration related to the use and development of the land: Stringer v Minister of Housing and Local Government [1971] 1 All ER 65,77.

14

The approach to the relevance and to the interpretation of Local Plans has recently been considered by the Supreme Court in Tesco Stores Limited v Dundee City Council [2012] UKSC 13. Lord Reed (with whom the other members of the Court agreed) explained that:—

"17. It has long been established that a planning authority must proceed upon a proper understanding of the development plan: see, for example, Gransden & Co Ltd v Secretary of State for the Environment (1985) 54 P & CR 86, 94 per Woolf J, affd (1986) 54 P & CR 361; Horsham DC v Secretary of State for the Environment (1991) 63 P & CR 219, 225–226 per Nolan LJ. The need for a proper understanding follows, in the first place, from the fact that the planning authority is required by statute to have regard to the provisions of the development plan: it cannot have regard to the provisions of the...

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