Walsall Metropolitan Borough Council (Claimant) Secretary of State for Communities and Local Government (Defendant) Dartford Borough Council (Claimant) Secretary of State for Communities and Local Government (Defendant)
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE EDER |
| Judgment Date | 10 May 2012 |
| Neutral Citation | [2012] EWHC 1756 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1034/3012 |
| Date | 10 May 2012 |
[2012] EWHC 1756 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Eder
CO/1034/3012
CO/2334/2012
MR P COPPEL QC (instructed by the Legal Department of Walsall Metropolitan Borough Council) appeared on behalf of the Claimant, Walsall Borough Council
The Defendant did not appear and was not represented
MR M LOWE QC (instructed by Wragge Co LLP) appeared on behalf of the First Interested Party, Vodafone Limited
MR C BOYLE (instructed by Lawrence Graham Solicitors) appeared on behalf of the Second Interested Party, Telefonica Limited
MS E DEHON ( instructed by Sharpe Pritchard) appeared on behalf of the Claimant, Dartford Borough Council
The Defendant did not appear and was not represented
MR M LOWE QC (instructed by Wragge Co LLP) appeared on behalf of the First Interested Party, Vodafone Limited
The Second interested party did not appear and was not represented
(As approved)
These are two related sets of proceedings concerning planning approval in relation to the erection and installation of certain antennae and ancillary equipment. In the first case, Walsall Metropolitan Borough Council seeks leave under section 289(6) of the Town and Country Planning Act 1990 to bring proceedings challenging the decision of the defendant's Inspector, dated 4 January 2012. In the second case, Dartford Borough Council similarly seeks leave to bring proceedings challenging the decision of the defendant's Inspector, dated 6 February 2012.
These applications are opposed by the Secretary of State for Communities and Local Government. She does not appear before me today. However, I have received a letter, dated 8 May 2012, stating that the Secretary of State urges the court to refuse permission but does not attend in order to save expenditure of public funds. The first and second interested parties, that is Vodafone Limited and Teléfonica UK Limited, both oppose the grant of permission and they are both represented today by counsel, respectively Mr Mark Lowe QC and Mr Christopher Boyle. Both applications concern the provisions in A.3(7)(d) Part 24 of the Town and Country Planning (General Permitted Development) Order 1995, which provides, in material part, as follows:
"The development shall not be begun before the occurrence of one of the following—"
There then follows a series of subparagraphs including subparagraph (d), which states:
"(d) the expiry of a period of 56 days beginning with the date on which the local planning authority received the application without the local planning authority notifying the applicant, in writing, of their determinaton as to whether such prior approval is required."
It is common ground that the Councils in each case made a determination that the developments required prior approval before they could be erected. However, the Inspectors in each case decided that there had been no relevant notification to either Vodafone Limited or Teléfonica UK Limited within the stipulated 56-day period. It is common ground that the failure to notify any such determination within the stipulated period effectively grants planning permission for the relevant developments.
In the Walsall case the Inspector decided, on the facts, that the Council posted a notice of its decision on 27 January 2011 by second class post and published it on its website the following day. It is common ground that this was within the 56-day stipulated period in paragraph 7(d). Nevertheless, the Inspector found that such notice was not received by Vodafone or Teléfonica UK. Walsall Council now seeks to challenge that decision on grounds summarised in paragraph 6 of their skeleton, which reads as follow:
"In summary, the requirement in sub-paras (7)(c) and (7)(d) is not one of receipt by the applicant of the LPA's determination that prior approval is or is not required and (in the former case) that such approval had been given or refused: cf DL6 - DLS. The requirement in those sub-paras is that the LPA have notified the applicant of its determination within the prescribed 56 days. A LPA will have notified an applicant of its determination where it has posted that determination to the applicant: see s 233 of the Local Government Act 1972 (" LGA 1972"). Alternatively, by virtue of s 7 of the Interpretation Act 1978, the LPA will have effected notification of its determination where it has posted it to the applicant and, in the ordinary course of post, the determination would have been delivered to that address."
In addition, at least in his skeleton, Mr Coppel QC identifies a third ground relating to the status of paragraph 102 of the Code of Best Practice. In the course of the hearing I asked Mr Coppel QC whether he accepted the Inspector's decision, which is recorded expressly in paragraph 6 of the reasons:
"However, it, [that is what is described as the notification] was not received by the appellant."
Initially I understood him to say that he did accept that finding. Certainly there is nothing in the grounds of appeal, nor, I think, in his skeleton argument, suggesting that there was any challenge to that finding of fact. However, he drew my attention to paragraphs 26 and 27 of his skeleton, which read as follows:
"26. In concluding that the Appellant had not notified Vodafone of its determination that prior approval was required, the Inspector did not apply section 7 of the Interpretation Act 1978. To the extent that that section required being satisfied that MCL had "proved the contrary", the Inspector simply did not engage with the task.
27. In so failing, she erred in law."
So Mr Coppel QC submitted that, in effect, the finding of fact in the Inspector's decision, with regard to non-receipt of the document, is there challenged. Therefore although he accepted that there was what he described as a mismatch between his original grounds of appeal and that part of his skeleton, he applied, in the course of the hearing, to amend subparagraph (2) of the grounds of appeal to delete the word "notified" and to replace it with the word "received".
I am not prepared to give permission to amend the grounds of appeal in that way. It seems to me plain that the Inspector has found, as a fact, that the notice was not received by the appellant. What is stated in paragraphs 26 and 27 of Mr Coppel QC's skeleton does not assist. It says, in effect, that the Inspector did not apply section 7 of the Interpretation Act 1978. That may be right to the extent that section 7 of the Interpretation Act 1978 was not expressly referred to, although Mr Coppel QC told me that there had been some debate before her as to the effect of section 7.
Be that as it may, it seems to me absolutely plain that the Inspector did reach a finding of fact and on that basis Mr Lowe QC submits, and I accept, that there is no basis upon which Mr Coppel QC can properly submit that that conclusion was the result of any error of law.
Mr Coppel QC suggested that there was an error of law to the extent that the Inspector reversed the burden of proof. There is nothing in her decision that I can see that indicates that at all, and for that reason I proceed on the basis in relation to the Walsall case, that there is a finding of fact by the Inspector that the notification was not received.
So far as the Dartford case is concerned, the position is slightly different to this extent: the...
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