B e f o r e :
THE HONOURABLE MR JUSTICE OUSELEY
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| | THE QUEEN ON THE APPLICATION OF ERINE KIDES
| Claimant
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| | v.
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| | SOUTH CAMBRIDGESHIRE DISTRICT COUNCIL
| Defendant
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
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Official Shorthand Writers to the Court)
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Christopher Whybrow QC and Richard Harwood (instructed by Richard Buxton for the Claimant)
Alice Robinson (instructed by the Solicitor for the South Cambridgeshire District Council for the Defendant)
Richard Drabble QC and John Litten (instructed by Marrons for the Interested Parties)
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Judgment
As Approved by the Court
Crown Copyright ©
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Mr Justice Ouseley :
INTRODUCTION
Mrs. Kides, the Claimant, has lived in Longstanton, Cambridgeshire for some 30 years. She has been a Parish Councillor and for many years has taken an active interest in local affairs with a particular interest in planning. Over the last decade or so there has been an increasing prospect of a major residential and business development on greenfield land at Longstanton, together with a bypass. On 6th December 1995 South Cambridgeshire District Council, the Defendant, resolved to grant planning permission for such a development to Peter Stroude and Beazer Homes Central Ltd., respectively the major land owner and developer of the site at Home Farm, Longstanton. They are the Interested Parties in these proceedings.
The actual grant of planning permission was dependant upon an agreement being entered into under section 106 of the Town and Country Planning Act 1990. By March 1996, the planning conditions and heads of terms for the agreement had been agreed between the District Council and Mr Stroude and Beazers. But, principally because of the attitude of the Cambridgeshire County Council, which owned a small part of the development site and had to be a party to the agreement, the section 106 agreement was not signed for many years and so planning permission was not actually issued until 16th October 2000.
The Claimant seeks permission to apply for judicial review to quash the planning permission on the grounds that the District Council was under a duty to reconsider whether or not to grant planning permission in the light of relevant changes of circumstances since its December 1995 resolution and had not done so. This meant that it had determined the application for planning permission without having regard to all material considerations. Mr Justice Sullivan adjourned the oral renewed application for permission so that it would be dealt with immediately before the substantive hearing were permission granted.
The new factors upon which the Claimant relied were:
(1) the publication by the Government of Planning Policy Guidance Note 3 in March 2000 which put a new emphasis on brownfield development as opposed to the use of previously undeveloped or greenfield land for development purposes and which also promoted building houses at an increased density so as to reduce the amount of land required for development,
(2) the publication by Government of Circulars in 1996 and 1998 which encouraged the provision of affordable housing,
(3) the progress of the Council’s Local Plan Review and
(4) the closure of Oakington Barracks nearby in May 1999 releasing, the Claimant said, a major brownfield site for development.
The Defendant and Interested Parties take issue with the merits of the Claimant’s case both as to the nature of the duty on the District Council and as to its compliance with that duty. They submit also that permission to apply for judicial review should be refused because the application was not made promptly or within three months of the time when grounds for making the application arose and that no good reason had been shown for any necessary extension of time; the grant of relief would cause them both prejudice. Mr. Drabble QC for the Interested Parties submitted that the Claimant lacks the necessary standing to raise points in the judicial review proceedings which she had never before raised with the Council. Both the Defendant and Interested Parties submit that any relief to which the Claimant might otherwise be entitled should be refused in the exercise of the Court’s discretion because of delay, prejudice, and the Claimant’s failure to raise with the Council before planning permission was granted the points upon which she now relies.
THE FACTS
In order to set the competing contentions in context, it is necessary to go back to 1989 and see how the development control process and plan-making process unfolded together. The response of the Defendant and Interested Parties on the merits is very much to the effect that the Defendant examined all the factors relied on by the Claimant through the development control and local plan processes and indeed thereby had regard to them.
In 1989 the Cambridgeshire Structure Plan identified Longstanton as a Rural Growth Settlement.
In July 1991 the Secretary of State for the Environment dismissed Mr. Stroude’s appeal in respect of a comprehensive development, including residential development, at Home Farm Longstanton on the grounds that although the broad location of the 17 hectare development was “both a suitable and a natural extension to the settlement”, it could prejudice the resolution of a line for the bypass which Longstanton needed on environmental grounds, and that, without the containing effect of that bypass, the development would represent an unacceptable extension of development into the open countryside.
In April 1992, an inspector reported on objections to the South Cambridgeshire Local Plan after a long inquiry. He recommended a substantial housing allocation of up to 400 houses in the correctly designated Rural Growth Settlement of Longstanton, which would have the beneficial effect of preserving and strengthening its services and facilities. Housing was seen as a benefit in building a community. Home Farm was seen as the best place for that development. This development was all to be contained within the line of a bypass, as yet to be fixed, to be safeguarded in the local plan. There was, he recommended, an environmental need for the bypass.
The South Cambridgeshire Local Plan, as adopted in 1993, allocated two sites in Longstanton for residential development; this reflected its structure plan designation as a Rural Growth Settlement. One site at Home Farm was intended to provide for up to 250 dwellings to 2001. Other land was allocated for employment development. Other policies stated that substantial growth at Longstanton was dependant on the prior completion of a bypass which would have to be secured by an agreement under section 106 of the 1990 Act. The development was not then expected to fund its whole cost.
In May 1995 Mr. Stroude and Beazers submitted an outline planning application for a bypass to Longstanton, 21 hectares of housing development, nearly 7 hectares of business park development, an extension of nearly 3 hectares to the village recreation ground, a village green and other facilities at Home Farm Longstanton. After various amendments and supporting technical assessments, the application was reported to the District Council’s Planning Committee with an officer recommendation that it be refused.
The proposal was carefully appraised within the officer’s report against the Local Plan and other material considerations. In respect of residential development, the report stated:
“The application proposal incorporates the Local Plan objectives, albeit on land significantly in excess of the Local Plan allocation. Moreover the application envisages 250 houses (phases 1 and 2) to be completed by 2001 with the additional 250 completed by the year 2005. Whilst the first phase would accord with the approved Local Plan, the additional development proposed beyond 2001 would require acceptance of continued development of Longstanton into the Plan review period. It therefore effectively pre-empts any decision on the Local Plan review, which would allow the testing of competing opportunities”.
A concern about the scale of the employment provision was expressed and the report
stated:
“the concept of the scale of housing development balanced by job creation is welcomed but that balance is also created by the Local Plan allocations at a much reduced scale”.
The scale of development proposed affected its relationship to the bypass:
“The revised application achieves the objective of the Local Plan by providing a bypass for Longstanton. Moreover it does so entirely at the cost of the developer. The Local Plan indicated that the developer of the allocations should not be required to pay the entire road costs.
However, the phasing of the bypass is at variance with the Local Plan and the Inquiry Inspector’s conclusion that only a relatively small proportion of the new residential development (ie. of 250 dwellings) should be carried out before the bypass has been constructed. In my opinion that would represent some 50 dwellings.
In contrast the applicants’ proposals provide at least 100 dwellings (phase 1) before a “collector road link” is constructed to provide a interim bypass ... ... which would not be completed until the occupation of the 350th dwelling, which would be in the period of 2001 - 2005”.
The report noted with some surprise the unreserved support which the scheme had attracted from Longstanton Parish Council. The report concluded:
“Although the first phase of residential development accords with the approved Local Plan, the scale of growth envisaged beyond 2001 would pre-empt the proper debate of future growth in the District through the Local Plan review process.
Employment proposals significantly exceed maximum guidelines, which are already taken up by commitments, incorporated in the Structure Plan Review Deposit Draft for the period to 2006.
The proposal brings forward the complete funding and implementation of a Longstanton Bypass but only upon the occupation of the 350th dwelling. This phasing does not accord with the Local Plan, although the latter did not envisage 100% contributions from the developer, who plans an interim bypass at an early stage of the 2nd phase of development (100-250 houses)”.
Other matters were considered and then the officer recorded the applicants’ contention that they:
“do not believe that the Local Plan allocations can be implemented in terms of providing an attractive safe bypass and a scale of residential development commensurate with the Rural Growth status of the village. Any such weakness does not automatically render the application proposals acceptable”.
The report recommended refusal largely for the reasons set out above, together with one related to a shortage of educational facilities.
This recommendation was however rejected by the members who resolved that:
“in principle, it was minded to approve the application subject to a report covering draft conditions and draft Section 106 Agreement being submitted for approval by Committee at a future meeting”.
An indication was given by the Principal Legal Officer as to the range of matters which needed to be the subject of a Section 106 agreement. After minor amendments to the scheme and consideration of a first draft set of planning conditions, the planning committee on 6th March 1996 resolved to refer the application to the Secretary of State for him to consider whether he wished to call it in for his own determination, as it was an application which departed from the development plan. Briefly, this was because of the scale of residential and employment allocations which had been increased from those envisaged by the local plan in order to provide for the complete bypass.
By a letter dated 29th March 1996, the Secretary of State instructed the Council not to determine the application while he considered whether to call it in. He was particularly concerned that the scale of the proposal could prejudice the determination of the review of the Council’s housing requirements to 2006 in its local plan. However on 1st August 1996 he wrote authorising the Council to decide the application as it thought fit.
In August 1996 DoE circular 13/96 “Planning and Affordable Housing” was published.
In December 1997, the Council published the consultation draft of its Local Plan Review. In relation to Longstanton this draft said:
“The District Council considers that the provision of the bypass is crucial for the village and therefore allocated a larger area for a housing estate than would otherwise be appropriate. In this instance there is no requirement for affordable housing as set out in Policy HG9 because of the need to ensure the bypass and other community facilities such as a village green, shop and surgery”.
The draft policy “Longstanton 1” allocated two areas totalling 21 hectares for housing at Home Farm and referred to the need for and timing of the provision of the bypass and other facilities. The plan text commented:
“The site of Home Farm, surrounded on three sides by existing housing, is considered appropriate for residential development. This would also enable the creation of a village green at the junction of Over Road and High Street. This, together with local shopping or community facilities which will be required because of the increased population, will allow the creation of a clearly identified centre to the village. However, the major area for housing development, as it will abut the proposed bypass will require a high degree of screening and landscaping to reduce the visible impact and to create a satisfactory residential environment”.
In April 1998 DoE Circular 6/98 “Planning and Affordable Housing” was published. This was a substantial elaboration of the previous policy contained in Circlar 13/96. Also in 1998, the Council prepared and consulted publicly on a Development Brief for this area, approving it in December 1998.
Following its consideration of objections to the consultation draft, the Council published the Deposit Draft version of its Local Plan review in February 1999. There were no changes to the relevant policy between the consultation and deposit draft versions and the supporting text to the policy included reference to the preparation of a development brief for the Home Farm site.
In April 1999 a revised draft version of PPG3 “Housing” was published.
In May 1999 the Ministry of Defence vacated Oakington Barracks which had been declared surplus in November 1998. The built area of the site was said by the Ministry of Defence to total 57 hectares; its development potential had already been signalled. By July 2000, the Ministry of Defence was promoting its potential for housing by 2006 subject to “positive inputs” from a number of studies which had yet to be undertaken.
Objections were received to the content of the Deposit Draft of the Local Plan review concerning Longstanton; these were reported to the Council. The nature of the objections and the consideration given to them was urged in support of both sides in this case.
Objection was made to the allocation of 6.3 hectares for employment purposes which was said to be a major exception to structure plan policy. The officers’ recommendation was that no change should be made to the policy and they assessed the objection as follows:
“The policy reflects the Council’s resolution in 1995 to grant outline planning permission for residential (500 houses), employment (6.3 ha) and recreation uses subject to the completion of a S106 Agreement which would secure a village bypass. The District Council considered that the provision of a bypass outweighed the policy designations which would have limited the number of houses to be completed in the village to 250 houses located in the Local Plan and 400 houses normally permitted in a Rural Growth Settlement. The provision of a 6.3 ha employment site would provide the opportunity for jobs and homes to be located in close proximity in accordance with the principles of sustainable development”.
The Claimant stressed the references to the resolution to grant outline planning permission; the policy, it was said, simply reflected the resolution passed in 1995. The Defendant and Interested Parties stressed that the objections were being rejected on their merits, and that the last sentence of the assessment reiterated the considerations which underlay the resolution in 1995 and their continuing force. The particular merits of the objection were assessed and dealt with.
Another objection sought the deletion of the Longstanton allocations because of a variety of policy objections including the fact that a bypass was not needed if the price to be paid was “large housing estates and science parks”. The “old airfield (Oakington Barracks) should be used instead”. The Council officers’ assessment of this objection was the same as set out above except for the last sentence which read:
“The identification of the Barracks, in advance of the conclusions of Regional Planning Guidance would prejudice the outcome of that review”.
Others, who objected that the allocations were premature in advance of discussions on the future of Oakington Barracks, met the same response.
A more detailed objection which referred to the advantages of Oakington Barracks as a brownfield site over the allocation of the Home Farm greenfield site, was met with a variation on the last sentence.
“Any strategic consideration of Oakington Barracks must first be established through the Regional Guidance and the Structure Plan. It would be premature to advance this site in the Local Plan Review”.
A further objection raised the question of traffic impact, which is not a point pursued by the Claimant now in these proceedings, but which illustrated the Council’s approach. The same introductory references to the policy reflecting the 1995 resolution continued:
“The Traffic Impact Assessment, although having a base date of 1995, included provision for forecast traffic growth and therefore remains a valid basis on which to assess the impact upon the transport network”.
This objection also raised Oakington Barracks and its brownfield advantages; the assessment commented:
“The site at Oakington Barracks is of strategic importance, which the panel report identifies would require a long lead in time, clearly beyond the time scale of this local plan. It would be premature to identify this site in advance of the agreement of a Cambridge Sub Region beyond the period to 2006”.
Reference was also made to a possible new settlement to the North of Cambridge.
The omission of affordable housing was raised by an objector; the Council officers’ response was:
“The scale of development proposed is dependent upon the provision of a development related bypass. The District Council has resolved to grant planning permission in respect of a 1995 application without the need for affordable housing. However, it would be appropriate to consider whether this provision should be sought from this site if any subsequent planning application were to be submitted as detailed in paragraph 4.20 of the Housing Chapter. Such provision would be subject to negotiations with the applicant. The commentary in part 1 needs to be reflected in the Longstanton Village Extract”.
Other objections contained variations on the same themes, and the responses adopted a generally similar format. The officers’ recommendations were accepted in due course.
The deposit plan was amended in October 1999 in response to various of these objections and was again placed on deposit. The policy for Longstanton was amended to include a new paragraph which read:
“Development of this site will be subject to Policies HG9 (except HG9 Part 4) and HG10 for the provision of affordable housing. Where affordable housing is required, planning permission or renewal of planning permission will not be granted until a legal agreement has been signed ensuring such provision”.
This was supported by new text which affirmed that any new planning application would not be subject to the 1995 resolution and that “it would be appropriate to consider whether affordable housing should be sought from this site. However whether the site could stand the full figure of 30% recommended by the survey, in addition to the bypass and other infrastructure would need to be subject to negotiations with the applicant”. A high level of need for affordable housing had been identified by a district wide survey. Objections were pursued by the Interested Parties to affordable housing policies at the local plan Inquiry in February 2001.
In March 1999 the Interested Parties had made a further application for a major residential and business development at Home Farm. It was similar to the 1995 application as amended, except that the housing areas were reduced and in one part in a different location, and crucially an arm of the bypass had been omitted. This new application was an attempt by the Interested Parties to overcome the problem which had held up the issue of the planning permission pursuant to the 1995 resolution. The section 106 agreement relating to the provision of the bypass had been delayed by the unwillingness of the Cambridgeshire County Council as the owner of a small part of the land required for the bypass to sign it. (There had been a dispute between the County Council and the Interested Parties about the former’s contribution to the highway costs). This revised application omitted the County Council’s land.
Seventeen residents of Longstanton including the Claimant objected to this proposal; but it is not known whether all seventeen objected on all of the twenty-four grounds listed on the Officers’ Report. Those grounds include the potential availability of Oakington Barracks as a brownfield site, and material changes since the 1995 resolution including the emergence of Oakington Barracks, Circular 1/97 and 6/98 requiring benefits from new housing sites such as affordable housing, and prematurity in advance of the local plan review.
The Officers’ Report stated that the starting point was the resolution of 6th December, 1995 but that:
“98a. The Council needs to assess the new application against any material change in circumstances since those decisions on the earlier applications”.
It identified that the principal changes were the publication of representations on the Deposit Draft Local Plan, the new Government guidance in Circular 6/98 encouraging affordable housing, the absence of a complete bypass, and the proposal for housing on land which did not form part of the 1995 application or of a site allocated in the Deposit Draft of the plan.
The proposal, that latter apart, was seen as according in scale and location with the Deposit Draft. There had already been a report to Planning Committee on the representations to the Deposit Draft. Oakington Barracks was seen as a proposal to be examined through the structure plan process and it was too early for it to be advanced in isolation or even yet in the context of a new settlement to the north of but close to Cambridge. Regional Planning Guidance, through which such a proposal was proceeding, dealt with the period 2006 - 2016, whereas the local plan allocations were to deal with the period up to 2006. On affordable housing, having quoted the provisions of the Deposit Draft Local Plan, the Officers’ Report referred to the view, which officers had already expressed to members, that the current application was not subject to the 1995 resolution and that it would be appropriate to consider whether some affordable housing should be sought.
Members were recommended to object to the application because of its non compliance with housing policies and the bypass provision within the Deposit Draft Local Plan. If development were to take place, affordable housing was to be sought. An appeal was lodged against the non determination of this application but the appeal has not been proceeded with.
In May 2000, the 1995 proposal was again specifically considered by the Planning Committee in the context of a resolution having been achieved to the difficulties between the County Council and other landowners over the section 106 agreement. The Longstanton Parish Council appeared unwilling to take on the customary role of maintaining and managing the public amenity areas which the proposed development would provide. The District Council was to step in and undertake this responsibility because that approach would remove yet another hurdle in the way of a development which “all parties want to press on with now as soon as possible”.
On 7th June 2000 the Planning Committee welcomed negotiations between the applicants for planning permission and the Parish Council over the maintenance of the proposed public open space but were concerned that “extended discussions might significantly delay the process”. A decision was expected quickly and the issue would be returned to Committee in July if negotiations were unsuccessful.
There were extensive discussions between the applicants and the Parish Council from Spring 2000 through to the Autumn 2000 on this issue but in the course of these, members of the Parish Council expressed a hostility in principle to the proposed development.
In July 2000 the Planning Committee considered a report from the Planning Director dealing with the Council’s stance on certain housing issues which were being raised in the Local Plan Inquiry, which by then had been running for a month. One important issue which the Inspector himself had raised for consideration, was the question of the effect on the Local Plan of the new Housing PPG3 issued in March 2000 with its emphasis on a sequential approach to housing development sites with brownfield development preferred to greenfield development, and with its emphasis on higher densities. The Planning Director referred to a study which had been carried out, the conclusion of which was that the Local Plan policies and allocations complied with PPG3 but that certain sites, not including the site at issue in this case, could be deleted from the plan. Housing density could be increased on average from 25 - 30 dwellings per hectare unless local circumstances dictated otherwise.
There was some criticism before me of the study underlying this report and in particular of its approach to the sites in question here. It was submitted by Mr. Whybrow that the study showed that the resolution of December 1995 was the key to the inclusion of the Longstanton site in the Local Plan rather than the local plan process constituting any opportunity for the site to be appraised against PPG3 and its new policy emphasis. Various other criticisms were made of it as a basis upon which it could be said that the Council had reconsidered the 1995 resolution in the light of PPG3. The study acknowledged that:
“There are a small number of villages where the Local Plan makes allocations in villages which do not meet the “sustainable” criteria. In each case there are specific reasons justifying the proposed development and these accord with the criterion (4) of paragraph 31 of the PPG, that is “the ability to build communities to support new physical and social infrastructure and to provide sufficient demand to sustain appropriate local services and facilities”. Thus:
- Longstanton, a Rural Growth Settlement designated in order to provide a much needed bypass, together with an extension to the recreation ground, a village green and a shop”.
Longstanton was thus seen as at present an unsustainable location for major development but one which would become sustainable through the beneficial effects of development which would remedy its deficiencies.
The study also identified that there were material considerations affecting density at Longstanton where a maximum of 500 dwellings had been specified in the Local Plan for accommodation within the line of the bypass. This was said by Mr. Whybrow to show that the requirements for higher density were not reconsidered in view of the resolution to grant planning permission.
The Planning Committee, recommended to full Council in essence that it accept the report, both in its broad approach and in relation to most specific settlements, the exceptions to which did not include Longstanton. Full Council accepted most of the Planning Committee’s recommendations including its recommendation in relation to sites including Longstanton.
The Claimant had objected to the Deposit Draft Local Plan on a variety of grounds; she objected to the principle of this substantial development at Longstanton and to the bypass. She saw Oakington Barracks as a more suitable place for development. She was particularly concerned about traffic. Her written objection for the Local Plan Inquiry continued the same themes. On no occasion in her lengthy representations did she raise any point about affordable housing. The brief reference to it in her letter of 16th March 2000 to the Local Plan Inquiry is no more than the consequence of her having to write down the text of the Plan as it would be, were her representations to be successful. The amendments that she proposed did not involve any change to the affordable housing text. There is no express reference to PPG3 although some of the points raised in relation to Oakington Barracks may be said to reflect considerations within PPG3 about the desirability of brownfield development. Objections to the proposal at issue were heard at the Local Plan Inquiry a month before planning permission was issued.
On 2nd August 2000 the Planning Committee was again told that discussion between the applicants and the Parish Council were proceeding very slowly and that “it was anticipated that the Planning Director would be advised within a few days to issue outline planning permission”, with maintenance of open space being dealt with by a condition not agreement.
The Head of Legal Services said that he was negotiating details for a contingent maintenance commitment by the District Council. This was all done in the context of enabling the rapid issue of a planning permission. Members approved this approach as the Minute shows.
Indeed, Mr. Hussell the Planning Director states in his witness statement that the 1995 application was reported to Planning Committee as an outstanding application on nineteen occasions, with members retaining an active interest in its progress towards the grant of planning permission.
Following the resolution of the issue over the maintenance of the public amenity space comprised in the development without the involvement of the Parish Council, planning permission was issued on 16th October, 2000. This was the culmination of a decade of applications and local planning consideration of the need for development on a substantial scale in order to bring about a bypass, housing and employment and better services and facilities at Longstanton. At no stage had the Claimant specifically asked the Council to reconsider its 1995 resolution on the grounds of changed circumstances or new material considerations arising and at no stage had the Claimant suggested to the Council that it would be acting unlawfully were it to fail to reconsider its resolution.
The Planning Committee, until May 2001, considered planning applications and development control as well as planning policy, including the merits of proposals in the Local Plan review or of objections to them. They dealt with those different but related areas of business at different meetings. However the Membership and Chairmanship of the Committee were unchanged.
THE DUTY ON THE COUNCIL IN DETERMINING THE APPLICATION
There was no dispute but that the grant of the planning permission on 16th October 2000 was the decisive act, the fulfilment of the duty to determine planning applications. Up till that moment, it was open to the Council to reconsider its resolution of December 1995 and to come to a different conclusion; R v West Oxfordshire District Council ex parte Pearce Homes Ltd., 1986 JPL 523 illustrates the point.
The Council did not contend that the matters which the Claimant said it ought to have taken into account upon a reconsideration, were other than considerations material to its decision, and some at least had not been considered in 1995. Mr. Whybrow on the other hand did not contend that the Planning Committee was wholly unaware of these factors; he acknowledged that the Members were aware of them in a general way but that, he submitted, was insufficient. He submitted that there was a positive duty formally to reconsider the application in order that the statutory duty in section 70 of the Town and Country Planning Act 1990 be fulfilled.
The two issues on the merits of this application are:
(1) What is the nature of the duty in section 70 in a case such as this?
(2) Was that duty fulfilled on these facts?
Section 70 provides:
“(1) Where an application is made to a local planning authority for planning permission -
(a) subject to sections 91 and 92, they may grant planning permission, either unconditionally or subject to such conditions as they think fit, or
(b) they may refuse planning permission.
(2) In dealing with such an application the authority shall have regard to the provisions of the developments plan, so far as material to the application, and to any other material considerations”.
The duty to have regard to material considerations must be fulfilled before planning permission is granted or refused but it is a duty which continues up to that moment. It was not contended by the Council that the resolution of December 1995 of itself meant that section 70 had been complied with in October 2000.
Mr. Whybrow initially submitted that there was a duty to reconsider and a number of his subsidiary submissions used that language. But there is no express duty to reconsider; there is simply a duty “in dealing with” an application to “have regard to .... material considerations”. Of course compliance with that duty may involve reconsideration of an earlier resolution, but that is not the same at all as saying that there is a duty to reconsider and that only a formal reconsideration can ever suffice for compliance with section 70 in the event of new material considerations arising between a resolution to grant permission and its actual grant.
I accept that Dyson J. in R v St Edmondsbury Borough Council ex. parte Davidson 28th June, 1999, unreported, states that in the circumstances “the Council should have reconsidered the application of PPG6 afresh”; that phrase is merely a reflection of what in that case was required for section 70 to be fulfilled. A wholly new factor emerged after the resolution to grant planning permission and the Council refused to consider it at all, because of its resolution to grant permission.
Mr. Whybrow further submitted that even if there were just a simple duty to have regard to material considerations, that duty had to be discharged by a focused examination of them specifically in the context of the application in question and that it was inadequate for the purposes of section 70 for there to be simply a general awareness of the considerations in another context. Moreover because section 70 was a duty imposed on the Council, by virtue of the fact that it was dealing with the application, this obligation did not have to be triggered by a request to reconsider from a local resident.
I accept the latter submission but reject the first submission. In my judgment it is a question of fact whether in the circumstances in any particular case the duty has been fulfilled. What actual steps have to be taken in order to fulfil it, as a matter of fact, depends on the circumstances of the case. Very often the circumstances will indeed require a formal Committee meeting to reconsider an earlier resolution in the light of new circumstances. However I do not accept that that is required in law if, on the facts of a particular case, it is possible to demonstrate that regard was had to the material considerations in some other way.
The Council contended that that duty had been fulfilled in fact through the consideration of the new matters on occasions when the 1995 application was brought before the Planning Committee for consideration on matters such as the section 106 agreement and public open space, and also when the 1999 application was before it and most importantly, when issues concerning planning policy and other sites were considered as part of the local plan process. The Claimant contends that in any event the facts fall short of the Council having had regard to the new material considerations relied on in the context of “dealing with” a planning application.
Before dealing with the Council’s contentions, I should note that in its acknowledgement of service, it contended that the duty in section 70 had been fulfilled because the planning officer had had delegated to him the function of monitoring undetermined planning applications in the light of changed material considerations and he saw no reason to return the matter to the Committee. This argument was not really persisted in by the Council though it featured in Mr. Drabble QC’s submissions for the Interested Parties. The delegation of the consideration of new material considerations is no answer to the Claimant’s claim: first, no resolution generally or particularly delegating the necessary powers of determination, was produced to me; and secondly, a power to determine whether an application should be brought back to Committee and to deal with mechanical or trivial issues which might reasonably not require Committee consideration, is very different from a power to determine an application in these circumstances, where new factors of obvious significance had arisen.
It is significant that in this case the one Planning Committee, albeit on different occasions, considered both Local Plan policies and objections, as well as development control matters in relation to this application. There can be no doubt that, as Members of the Planning Committee, they were well aware of PPG3 with its emphasis on a sequential approach, preferring brownfield sites to greenfield sites, and at higher densities, that they were well aware of the encouragement given to affordable housing through Government policy, (indeed the Council’s consideration of affordable housing started appreciably before the Government issued its Circulars in 1996 and 1998), that they were well aware of the closure of the nearby Oakington Barracks and of its potential for housing, and that they were well aware of the stage reached in the Local Plan review. On no occasion did they express a desire to change their minds as they could easily have done. On the contrary, the evidence of Mr. Hussell and of the Minutes is that Members wanted to proceed with this development quickly because it was important for Longstanton and for housing requirements generally.
This is not because they were unaware that they had the power to reconsider; there is no evidence to suggest that that was the position. Certainly Officers were well aware that the resolution could be re-examined because on two occasions, 24th December 1998 and 15th June 1999, Mr. Hussell wrote to two local residents referring to a need to review the application in certain circumstances. I should add on those letters, that I accept the submission of Miss Robinson for the Council that their context is how the Council would react in the event that no section 106 agreement could be concluded. However that does not detract from the fact that there is no basis for supposing that Members were unaware that the resolution did not bind the Council to grant planning permission or disentitle them from re-examining it.
I further accept that a crucial feature of this particular application is the way in which over a decade and more, the application for planning permission for substantial development at Longstanton has emanated from and run in tandem with proposals in plans for such development: the Structure Plan in 1989, the application in 1991 in which the principle of major development was supported albeit that the application itself was unsuccessful, the Local Plan processes in 1993, a further application in 1995 which was put on hold temporarily by the Secretary of State while he considered whether to grant permission would be premature in relation to the new Local Plan, the resolution in December 1995 on that application which naturally led to the development proposals being reflected in the review Plan which enlarged upon those in the 1993 Plan, and the consideration of objections to the review Plan.
I accept Mr. Whybrow’s general proposition that the Local Plan and development control are different planning contexts with different purposes and differing focuses. However that is not an answer in all circumstances to the potential for consideration in one context to amount to consideration in both contexts. The new material considerations were dealt with in part in the context of objections to a particular development allocation which reflected the 1995 resolution. The objections raised to that policy and proposed allocation were inevitably objections to the development itself; consideration of them as policy objections necessarily involved consideration of the principle of the development. They were objections in principle, save perhaps for affordable housing, and not objections to the detail of one application which another application might remedy. All the other matters of which complaint is made, go to the very principle of any large development at Longstanton and are just as significant or insignificant in planning weight, whether they are taken as going to the policies or proposal in the Local Plan or to the grant of permission for the 1995 application. No Councillor forming a view that the policy and allocation was desirable in the light of those new factors, could have helped forming the view that those factors did not warrant a refusal of planning permission, except in relation to the prematurity issue.
This in my judgment also answers Mr. Whybrow’s point that the general awareness of new factors is not enough and that those factors have to be considered in the context of the application. I do not disagree with that as a general point but here the consideration of the particular points at issue in the context of the policies and proposed allocation necessarily involved also considering their substance in the context of this particular application. This is inherent in the nature of the material considerations and in the nature of the relationship between the policy and allocation in the local plan and the proposed development itself.
Mr. Whybrow submitted that any local plan consideration took as its starting point the existence of the resolution, and said that the policies and their subsequent consideration in relation to objections simply reflected the resolution of December 1995. Hence it could not constitute any form of analysis of the merits of the resolution in the light of a fresh consideration. He relied upon the oft repeated phrase “the policy reflects the Council’s resolution ...” in its response to representations on the Deposit Draft of the Local Plan.
I do not accept that submission. The phrase emphasises the closeness of the link between the application for planning permission and the local plan policies and allocation. The two are inextricably intertwined. The statement of fact contained in that phrase is followed up with specific answers as to the current wisdom of the policy and allocation, and those answers are more than a mere justification of the current stance by reference to the existence of the December 1995 resolution as if it were immutable and binding. Further, the objections are considered and weighed on their merits and not dealt with as if, however sound they might be, the resolution had sold the pass.
I have set out in some detail the consideration given to the various issues in the Local Plan process so I can draw the threads together briefly dealing with the material considerations relied on in turn.
PPG3 was principally dealt with in the study required by the Local Plan Inspector which was reported to the Planning Committee and to Council, the results of which were accepted in large measure including those related to Longstanton. The study recognised the current “unsustainability” of Longstanton as a place for development but concluded that Longstanton after the development had taken place would be a sustainable place for employment, housing and transport. The consideration of these factors was required by the Committee and the Council for the formal expression of the Council’s view to the Local Plan Inspector. So it went beyond a general awareness of the existence of PPG3. Mr. Whybrow’s detailed criticisms of the consideration of PPG3 included the fact that Longstanton was not in Table 5A of the study as “a local plan allocation without planning permission”; but this is an imperfection in the study from which other sites, both included in and excluded from the table, also suffer. There are references elsewhere in the study to Longstanton not having planning permission which shows a muddle rather than self-deceit; it would have been perfectly obvious to everyone on the Planning Committee that the allocation at Longstanton did not have planning permission. Mr. Whybrow pointed to shortcomings of Longstanton as a sustainable place yet the Council clearly weighed in its analysis of the report, the advantages of development over those shortcomings and the way in which development with the considerable public benefits required, would overcome those shortcomings.
Density was specifically considered in relation to Longstanton and an exception to the general approach was indicated, not because of the 1995 resolution, but because of the purpose of the housing development and its relationship to services and to the bypass. The mix and type of housing in so far as it affected density was a reserved matter. The consideration of PPG3 in the context of this study inevitably involved a consideration of the 1995 application - the maintenance of the allocation was not the consequence of the 1995 resolution but was the consequence of the consideration by the Council and its desire to see the development go ahead with the advantages which it would bring, some of which were relevant to PPG3 particularly in the context of a rural district with few brownfield sites available.
Oakington Barracks was considered in responses to the objections to the Deposit Draft. It gave rise to an argument that the Longstanton allocation should be deleted from the plan because Oakington Barracks would meet the needs for housing. This is equivalent to saying that planning permission should be refused because Oakington Barracks was a better site. But that approach was rejected on its merits in relation to the timescale for meeting housing needs, its inability to provide the bypass to Longstanton, the scale of housing envisaged in relation to the local plan process and the fact that its potential would be needed later in addition. Oakington Barracks was not rejected as an objection because the December 1995 resolution precluded consideration being given to it; it was rejected because it did not have sufficient merit to warrant the allocation being deleted and hence to warrant planning permission being refused.
Whilst Government Circulars 6/98 and PPG3 on affordable housing post-date the December 1995 resolution, the provision of affordable housing had already been a consideration for the Council in 1995 since its adoption of Supplementary Planning Guidance in 1990 and 1993. The view had been reached in 1995 that no affordable housing would be sought because the development was now being burdened with the full cost of the complete bypass together with other community benefits. The Deposit Draft objections did lead to a change in the policy to the effect that a fresh application for housing at Longstanton would be examined afresh and a different outcome in relation to affordable housing might be reached. It is clear that the Planning Committee considered the objections and decided not to change its position on the current application because agreement had been reached on a package which was proceeding tortuously towards legal embodiment in a section 106 agreement with the Cambridgeshire County Council. A different application might lead to a different balance between development costs e.g. if the County Council paid something towards highway or educational costs releasing money for affordable housing. However, it is clear that those policies were considered in relation to the current application and a view reached that the current package would not be disturbed. The fact that that consideration took place through the Development Plan process does not alter the fact that a view was reached in relation to what should be done to the current application.
I appreciate that here it can more readily be said that the Council regarded itself as bound by the resolution and so only considered how it would react to a fresh application rather than consider its attitude to the current application and affordable housing. But I do not consider that to be correct: the substance of the consideration involved both the current and any potential fresh application and the substance of the conclusion was that the current application now enjoyed an agreed package in which the question or whether or not to have affordable housing had been considered and rejected because of other and high development costs.
Government policy was not introducing a new concept previously unconsidered nor one in which abnormal development costs and other benefits were required to be disregarded - far from it. The point made by the Claimants in these proceedings was made at a level of generality: a failure to consider Government policy on affordable housing in relation to this application. In reality affordable housing was considered both in anticipation of Government policy in 1995 and in the conclusion that the approach to affordable housing in relation to this application would not be changed, even though it might be changed in relation to a different application.
Prematurity in relation to the local plan process was considered in the context of the 1995 application by the Secretary of State at the time when the 1993 Local Plan had been adopted. Accordingly prematurity was rejected by the Secretary of State as a basis for calling in the 1995 application and by the Council as a basis for refusing it permission in relation to the very Plan which was at Inquiry in October 2000. Prematurity was considered therefore in 1995. The Council’s concern was at the subsequent delay. The Planning Committee was obviously very well aware throughout 2000 that the Local Plan Inquiry was underway, that there were objections to the Local Plan and that the allocation at Longstanton was very important to the Plan and to Longstanton itself. It is clear that the Planning Committee wanted the development rapidly to proceed. It obviously rejected the very notion that the grant of permission in 2000 following a resolution in 1995 was premature in relation to a Local Plan which was more advanced than it had been in 1995. This is underscored by the view which it took in relation to accepting, unusually, District Council rather than Parish Council involvement in the maintenance of the amenity open space development in order to hasten the section 106 agreement and the grant of planning permission. I should emphasise that the point raised by Mr. Whybrow related to a failure to consider the point of prematurity, it was not that planning permission had to be delayed until for example the receipt of the Inspector’s report.
In considering the 1999 application in October 1999, the Planning Committee in its development control function was specifically alerted to three of the points now at issue: prematurity, Oakington Barracks and affordable housing. The representations to the Local Plan were referred to as well as the Council’s response to them; Oakington Barracks was considered and not thought to assist because of the timescale of current housing needs and its own planning and development timescales. Affordable housing was considered in relation to Circular 6/98; affordable housing was to be sought in the context of a different bypass and different development costs.
I accept that there was not one single meeting at which the new material considerations were formally considered as a group together with other relevant factors explicitly in relation to the 1995 application. This might matter if the Planning Committee had accepted the strength of individual objections on separate occasions which individually did not justify a change in decision, but which cumulatively might have done but had they been so considered. However here the Council did not accept that any of the new factors were justified or significant objections at all, let alone ones which taken together could lead to a different result.
I consider that the Council did fulfil its section 70 duty when granting planning permission in relation to all those material considerations. It considered them principally but not exclusively through the local plan process but it clearly maintained its view having considered each of them.
For those reasons even if permission to proceed were given, I would reject this application on its merits.
DELAY
Both the Defendant and the Interested Parties submitted however that I should refuse to grant permission to apply for judicial review notwithstanding that the matter had been fully argued over two days and not withstanding that I have considered the case on its merits and it is plainly an arguable case. Often it would be wasteful to consider refusing permission in such circumstances; any undue delay or want of promptness could be considered in relation to prejudice and the exercise of discretion. However the delay point raises an issue which I ought to deal with having heard full argument. It also affects appeal provisions.
It was submitted first that if 16th October 2000, the date of grant of planning permission, were the appropriate date from which the three month period were to start running, the application for judicial review was made on the last day of a six week period; on 27th November 2000. This was said to be insufficiently prompt in circumstances where the Claimant knew of the planning application, of the resolution in December 1995, of the 1999 application, of the Local Plan policies in support of the development because she objected to them, and had attended most of the Council and Parish Council meetings in 2000. She was present at most if not all Planning Committee meetings when Longstanton was discussed; she was present on 3rd May 2000 when the intention to proceed, if necessary without the Parish Council involvement in public open space maintenance, was discussed and when the solution to the County Council highway and land issue was reported. She was present at a meeting between Parish Council Members and Beazers, when Beazers’ representatives said that they were looking for planning permission now as soon as possible and that its issue could be imminent. The Claimant has also emphasised her close interest in community affairs and in this issue in particular.
I bear in mind what was said in R v London Borough of Hammersmith and Fulham ex parte Burkett 2001 JPL 775 Court of Appeal about the six week period set for statutory challenges under section 288 of the 1990 Act. It was but a touchstone of varying usefulness in relation to the question of what is prompt in judicial review planning cases; it is not a substitute rule in planning cases for the three month period or for the primary obligation to apply for permission promptly.
I do not consider, although there is force in Mr. Drabble’s submission as to the background, that there was a want of promptitude if 16th October 2000 were the appropriate starting point, in view of the material to be gathered and correspondence to be undertaken responsibly by solicitors although it was approaching the limits of promptitude.
However, the real question is whether 16th October 2000 is the appropriate start date for the running of the three month period. That is of course the date of the issue of planning permission. Mr. Whybrow says that there was nothing to challenge earlier. How could the Claimant identify a point at which it was clear that there would be no consideration given, as she required, to the new factors? Any earlier challenge would have been rejected as premature. “Grounds to make the claim” only “first arose” (CPR part 54 rule 5(1)(b)) on 16th October 2000.
Mr. Drabble for the Interested Parties and Miss Robinson for the Defendant submitted that grounds first arose somewhat earlier. This did not necessarily depend on there being an identified decision. Grounds can arise when a stage in a process is reached by which it is clear that the decision maker is set upon a process or along a path which will in all probability lead to an unlawful decision, because of failings which he ought already to have remedied or to be contemplating remedying if an unlawful act were to be avoided. Grounds arose here when the stage had been reached by which it was clear that the Planning Committee was not going to do what the Claimant said in law they had to do.
Miss Robinson contended that this was clear by the time of the Planning Committee meeting of 3rd May 2000; there would be no further hold-up and no further reporting back. Alternatively, by 2nd August 2000 the Planning Committee, which had had to look at the matter again because of the outstanding open space issue, approved an approach in relation to solving that impasse as soon as possible, and the publicly available Minutes recorded that “it was anticipated that the Planning Director would be advised within a few days to issue outline planning permission”. By this stage PPG3 had been reported to the Planning Committee and its position on the other issues was clear.
If either of those dates was appropriate, the Claimant had failed the test set out in Burkett of striking at “the earliest reasonable moment at a process which if the objection is sound will otherwise end in an unlawful grant of planning permission”. By either of those dates, if the Claimant’s contention on the merits were correct, the Council was set on the path which would lead in all probability to the unlawful grant of planning permission.
Mr. Whybrow riposted that the letters of 24th December 1998 and 15th June 1999 promised a reconsideration and said the Claimant was entitled to wait. Those letters however were not written to her; they were produced by her solicitor without comment from her as to whether she had ever seen them before he had obtained them, or whether they had in any way affected her. In any event the stance contained in those letters, which I have already discussed as being reached in a different context, had clearly been superseded by the decisions of the Council in May 2000. Reference was also made to a letter dated 18th September 2000 from the Council to Mr. Kessell dealing with a number of complaints about the Local Plan, including Oakington Barracks and saying that having participated in the Local Plan process he would now have to await its outcome. There is also no evidence that the Claimant saw or acted upon that letter in any way. Mr. Whybrow says however that the Claimant could assume that with the Local Plan Inquiry proceeding, nothing would be done until its outcome were known. That is not something which the Claimant says in evidence but in any event it was clear throughout 2000 that the Council did not intend at any stage to await the outcome of the Local Plan Inquiry before granting planning permission, if it were otherwise in a position to do so.
I consider that, even if in May 2000 it was uncertain how the Council would react to fact that the highway problem had been solved, now that PPG3 had been published, it was by 2nd August 2000 perfectly clear to anyone that the Council was not going formally to reconsider the 1995 resolution in the way in which the Claimant now contends it had to. All the issues relied on were manifest, the Planning Committee’s approach to them through the Local Plan process was clear, as was its approach to the actual grant of permission. If proceedings had been started then, it is difficult to envisage the Council saying successfully that the application was premature because planning permission had not yet been issued, and it had not decided how to proceed. I consider that to be a clear stage by which grounds for making the application for permission to apply for judicial review had arisen.
Accordingly the claim was issued outside the three month time limit and there has also been undue delay. No good reason has been provided for an extension of time and I refuse the application for such an extension. The facts which I have set out earlier under this heading demonstrate the Claimant’s factual familiarity with what was happening. At no stage before the grant of planning permission did she request that the Council reconsider the position or point out its alleged error so that it could be redressed. There is also clear prejudice which would arise from the grant of relief. The prejudice arises both in respect of the need for the development and through the impact which relief would have on the operation of Mr. Stroude’s farm. This would require there to be very good reasons provided in order for her to obtain permission Accordingly I refuse permission to apply for judicial review.
STANDING
I do not accept Mr Drabble’s submission, in so far as it was persisted in, to the effect that the Claimant had no standing at all, because her real interest was in traffic which matter had been dropped, and that she had no real interest in the other issues. Her evidence of her local involvement and her representations to the Local Plan in opposition to the development show a wider basis for opposition.
However Mr Drabble submitted on a narrower front that in relation to the issue on affordable housing she was a mere meddler and had no standing. This was based on the fact that she had never expressed any concern about affordable housing or its absence and in particular on the fact that her opposition was designed to prevent any development at all, rather than to adjust the type of housing provided from one type which she disapproved of, to another type which would meet her approval.She had never even raised it as a contingent objection, in the event that development were to proceed. It was illegitimate, said Mr. Drabble, to take adventitious advantage of an error unrelated to one’s genuine concerns. Mr. Whybrow submitted that the Claimant had standing in relation to the development and therefore as a matter of standing could take any point which advanced her attack on the planning permission to which she was opposed.
I was referred to a number of authorities. I find IRC v National Federation of Self Employed and Small Businesses Ltd. 1982 AC 617 House of Lords the most helpful. Lord Wilberforce said at page 630:
“There may be simply cases in which it can be seen at the earliest stage that the person applying for judicial review has no interest at all, or no sufficient interest to support the application: then it would be quite correct at the threshold to refuse him leave to apply. The right to do so is an important safeguard against the courts being flooded and public bodies harassed by irresponsible applications. But in other cases this will not be so. In these it will be necessary to consider the powers or the duties in law of those against whom the relief is asked, the position of the applicant in relation to those powers or duties, and to the breach of those said to have been committed. In other words, the question of sufficient interest can not, in such cases, be considered in the abstract, or as an isolated point: it must be taken together with the legal and factual context. The rules requires sufficient interest in the matter to which the application relates.”
Lord Scarman said at page 653.
“The one legal principle, which is implicit in the case law and accurately reflected in the rule of court, is that in determining the sufficiency of an applicant’s interest it is necessary to consider the matter to which the application relates. It is wrong in law, as I understand the cases, for the court to attempt an assessment of the sufficiency of an applicant’s interest without regard to the matter of his complaint.”
In R v Legal Aid Board ex parte Bateman 1992 1 W.L.R 711, at page 720 Jowitt J. said:
“It is clear from the decision in that case that whether an applicant has a sufficient interest to maintain an application for judicial review cannot be answered in the abstract. it is necessary to consider what is the subject matter of his complaint and how he stands in relation to it, how it affects him (see, for example, the speech of Lord Wilberforce at page 630C-E).
Having pointed out that a direct financial or legal interest is not required but that the mere busybody is excluded, Lord Fraser of Tullybelton said at page 646:
The difficulty is, in between those extremes, to distinguish between the desire of the busybody to interfere in other people’s affairs and the interest of the person affected by or having a reasonable concern with the matter to which the application relates.
For myself, I think that although the problem of definition is elusive, common sense should enable one to identify a sufficient interest when it presents itself. Like the horse which is difficult to define but not difficult to recognise when one sees it.”
In R v Monopolies and Mergers Commission, ex parte Argyll Group 1986 1 WLR 763, 773, Lord Donaldson M.R. said:
“The first stage test which is applied on the application for leave will lead to a refusal if the applicant has no interest whatever and is in truth no more than a meddlesome busybody. If, however, the application appears to be otherwise arguable and there is no other discretionary bar, such as dilatoriness on the part of the applicant, the applicant may expect to get leave to apply leaving the test of interest or standing to be reapplied as a matter of discretion on the hearing of the substantive application. At this second stage the strength of the applicant’s interest is one of the factors to be weighed in the balance.”
None of these cases draw a distinction between a Claimant’s standing in relation to a particular decision and a Claimant’s standing in relation to the issues used or the arguments deployed to further the attack on the decision. Phrases such as “sufficient interest in the matter to which the application relates” or “having regard to the matter of his complaints” or “due appraisal of many different factors” or “the subject matter of his complaint and how he stands in relation to it, how it effects him” or “having a real concern with the matter to which the application relates” do not provide a clear answer.
In my judgment the cases do not draw a hard and fast distinction between standing in relation to a decision and standing in relation to an argument used to attack a decision, because such a distinction should not be drawn, especially because this is a matter dealt with at the permission stage. The characterisation of someone as having a reasonable relationship to the complaint or as a mere busybody can depend on either the decision or the basis of attack depending on the case. Once standing exists in relation to the decision it would be rather exceptional for a specific ground to constitute mere meddling. If such a point arises it is more likely fairly to be dealt with as a matter of discretion after legal analysis of its merits and its relationship to the Claimant’s interests.
However on the facts of this case, I do conclude that the Claimant is a mere busybody in relation to affordable housing. She has no interest at all in securing affordable housing; she wants to prevent any housing. She has seized adventitiously on a point of no interest to her, success on which would be of no interest to her except merely as a means of creating difficulties for the landowner, developer and Council. The provision of affordable housing would equally offend her. It would be an abuse of process for that argument to be proceeded with by her. Accordingly I also refuse permission to proceed with that particular argument.
It would be too harsh for a Court to take the same line in relation to PPG3 because, although it was not specifically raised by her as an objection, it nonetheless reflects both her concern in relation to the development and would strike at the development itself.
DISCRETION
If I had granted permission, and if the affordable housing ground had been the basis of success for the Claimant as a matter of law, I would have refused her relief in the exercise of my discretion for the reasons which I have given in relation to standing.
