Oadby Hilltop and Meadowcroft Conservation Area Association & Anor, R (on the application of) v Oadby and Wigston Borough Council & Anor [2011] EWHC 60 (Admin) (21 January 2011)

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Cite as: [2011] EWHC 60 (Admin)

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		Neutral Citation Number: [2011] EWHC 60 (Admin)
		Case No: CO/13459/2009

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL

21/01/2011

B e f o r e :

MR JUSTICE FOSKETT
____________________

Between:

	THE QUEEN on the application of OADBY HILLTOP AND MEADOWCROFT CONSERVATION AREA ASSOCIATION and ROBERT RALSTON	Claimants
	- and -
	OADBY AND WIGSTON BOROUGH COUNCIL - and - LEICESTER UNIVERSITY	Defendant Interested Party

____________________

Michael Bedford (instructed by Marrons) for the Claimants
Timothy Leader (instructed by Anne Court, Head of Legal and Licensing, Oadby and Wigston Borough Council) for the Defendant
Hearing dates: 16th December 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Foskett :

Introduction

The Claimants apply for judicial review of the Defendant's decision, by its planning committee (the Development Control Committee), on 1 October 2010 to grant planning permission relating to the use of Gilbert Murray Hall, 18 Manor Road, Oadby, Leicestershire. The planning permission itself was granted formally on 30 October 2009.

Permission to apply for judicial review was initially refused on the papers by Mitting J on 23 February 2010, but Beatson J granted permission after an opposed oral hearing on 2 July 2010

Gilbert Murray Hall is a hall of residence of the University of Leicester, the main campus of the university being in Leicester itself, some 3 to 4 kilometres away from the hall.

The planning permission challenged in these proceedings was for the "continued use of building as an all year round conference facility plus student facilities, extensions to conference hall including new roof and associated car parking".

It is common ground that for the present application to succeed an error of law on the part of the planning committee would need to be demonstrated on the established "public law" grounds. The court is not, of course, concerned with the planning merits or otherwise of the planning application itself or the merits or otherwise of the decision on the application.

The background in more detail

The site of Gilbert Murray Hall includes, amongst other buildings, a single storey building designed as a dining hall and catering facility for the hall of residence. The hall of residence itself was created by converting a period 1920s house, Villiers House. The dining hall was a 1960s purpose-built extension. The dining hall is connected to Villiers House by a single storey link building and is accessed via Villiers House itself. The dining hall has been used (without planning permission) as a conference facility for some years both during and outside the University term time. It is not, as I understand it, currently used as a dining hall.

The whole building is within the Oadby Hilltop and Meadowcourt Conservation Area and it is common ground that in making any decision on a planning application within the Conservation Area, special attention must be paid to the desirability of preserving or enhancing the character or appearance of the Conservation Area: s.72(1), Listed Building Act 1990.

The report of the planning officers to the planning committee describes the general area in these terms:

"The area is characterised by large Edwardian and mid to late twentieth century houses set in generous plots. The area is made more distinctive by its many mature trees and hedges, which line the streets and provide a particularly attractive setting for houses and other buildings."

The First Claimant is an association of local residents who live in and around the Conservation Area. Its current Chairman is Mr Steven Gasztowicz QC whose specialist field is planning law. The Association is an unincorporated association and the Second Claimant, Mr Robert Ralston, its Treasurer, has been added to the proceedings as a formality.

The University submitted a planning application in April 2009 which was then amended on 17 June and considered by the planning committee on 6 August. The purpose of the application was to regularise the conference use and to permit an extension to the dining hall. The officers described the application as designed to achieve "continued use of building as an all year round conference facility plus student facilities, extension to conference hall including new roof and associated car parking" (see paragraph 4 above).

The Claimants, through Mr Gasztowicz, made oral representations to the planning committee on that occasion as did a representative of the planning consultants representing the University. Each was permitted five minutes.

The objectors, which included the Claimants, raised a number of planning matters that, they argued, militated against the grant of permission. One of those factors was the suggestion that the additional need for car parking generated by the proposal (in the sense of on-road parking by delegates and the need for onsite parking on currently grassed areas) would have a detrimental effect on the Conservation Area. The Leicestershire County Council (through its Heritage Team and its Highways department) raised concerns about the parking issues: the Heritage Team expressed reservations about the proposed increased size of the car park near the hall of residence, suggesting that the provision of an extended car park with limited screening would "harm rather than preserve the appearance of the conservation area"; the Highways department simply raised concerns over parking, presumably in respect of the effect that increased use of the conference facility would have of the need for cars to be parked in the nearby roads thus affecting detrimentally the Conservation Area.

The position on site prior to the consideration of the planning application was that there were 22 car parking spaces to the west of the existing hall (including 2 disabled spaces) and 28 elsewhere on the site. The application proposed a further 28 places near to the existing 28 places and 16 places "alongside the residences to the rear of Gilbert Murray Hall." An additional disabled space was to be provided. The net provision initially made in the application was for 43 new spaces, but this was subsequently reduced to 25 spaces by way of an amendment to the proposal.

In reporting on the initial proposals, the officers said as follows:

"There is no objection to the proposed 16 parking spaces alongside the residences to the rear of Gilbert Murray Hall as planning permission was granted for 20 spaces plus 3 disabled parking spaces in this location in 2002. However, there are concerns regarding the additional parking area proposed for the 28 new places adjacent to the southern boundary of the site."

In relation to the highways matters the officers analysed the views of the Highways department in this way:

"In view of the above and on the basis that 43 new spaces are being provided, the Highway Authority consider that it would be very difficult to substantiate a reason for refusal solely on lack of parking. This view is further supported in that a Travel Plan is proposed which could reduce further the number of vehicles attracted to the site in connection with the conference facility.

However, the Highway Authority recommends that all 103 spaces in the vicinity of Gilbert Murray Hall are used solely for conference use. Without this condition, it must be assumed that the Highway Authority would have objections to the proposal. The implications of this condition are that there would be a net result of displacing all the current student vehicles to other areas, most likely being to the surrounding highway network. It is considered that this would have a negative impact on highway safety and the amenity of surrounding residential properties".

There was, it appears, a vigorous debate about the proposal at the planning committee in which all aspects were discussed, including the parking issues. The Chairman of the committee was Councillor John Boyce who was also Leader of the Council. Unlike the position in respect of the meeting at which the planning permission sought to be challenged in these proceedings was approved (see paragraph 26 et seq below), no recording of the proceedings was accomplished. It is generally the practice of this Council to record the proceedings of this committee so that a transcript can be prepared if required. However, on this occasion the recording facility failed. Perhaps not unnaturally, this has occasioned comment by the Claimants. However, it is not a matter upon which I am required to form any view or make any comment. The fact simply is that no transcript of that meeting is available.

The result of that meeting was that a motion to refuse planning permission was carried by 7 votes to 6. The Chairman had voted against the motion and thus in favour of the grant of permission.

The grounds upon which that permission was refused became a matter of controversy thereafter. The formal notice dated 12 August gave the reason for refusal as being that "the development as proposed provides inadequate off-street parking to serve the conference facility resulting in vehicles parking on the highway which would have a detrimental impact on the character and appearance of the … Conservation Area …".

Mr Gasztowicz, who was present and observed the meeting, was of the view that those who voted against the proposal did so on wider grounds than merely the ground set out in the formal notice to which I have referred. One matter, for example, that was referred to was the provision in PPS6 ('Planning for Town Centres') which provides in general terms that a development such as a conference facility should only be permitted "out of centre" if the applicant for planning permission has demonstrated that there are no more central sites for the development. Indeed the First Claimant initially sought judicial review in respect of alleged inadequacy of the reasons given for the failed application, but that aspect was not renewed following the refusal of permission to apply for judicial review by Mitting J. That there was, as it is suggested, some unresolved uncertainty about the true reason for rejecting that application is something that forms the backdrop to some of the submissions made about the meeting at which the new application (see paragraph 20 below) was considered. I will simply record that there was an exchange of correspondence about the matter and it emerged that some committee members also were uncertain about the position. However, from the Council's point of view the matter was resolved at a meeting of the full Council on 29 September when the minute of the meeting was confirmed as accurate.

At all events, following that meeting the University's planning advisers had a further meeting or meetings with the Council's planning officers on or about 12 August and as a result a new application for planning permission was lodged on 14 August. It provided for 4 (or, arguably, 5) additional car parking spaces in the grassed area within the site. It is this application that came to be considered by the planning committee on 1 October 2009. The consultation process on the new application was inevitably conducted during a period when many people, including the local residents, would have been on holiday. However, it has not been suggested that this consideration is of relevance in this case. Those who were interested in the new application had the opportunity to make representations before the final decision was made.

The report of the officers to the committee prior to the meeting described the application as seeking permission for "the continued use of the building as an all year round conference facility plus student facilities, an extension to the existing conference hall, including a new roof, a 'green roof', alterations to the internal layout and additional car parking facilities." The officers reported this to the committee:

"Members may recall that a similar application was refused at the 6 August Committee as the proposal provided inadequate off-street parking to serve the conference facility resulting in vehicles parking on the highway which would be detrimental to the character and appearance of the Oadby Hill Top and Meadowcourt Conservation Area.

The current application is the same as the previous application with the exception of the car parking. The current application has a revised parking layout with a total number of 29 parking spaces - an increase in 5 from the previous application."

In relation to the effect of the new proposals on the Conservation Area from the point of view of parking and highways issues, the officers reported as follows:

"The 29 new car parking spaces proposed do not raise any adverse issues with regards to the impact on the character and appearance of the conservation area or the neighbouring properties and therefore consideration should be given to what level of use during term time could be deemed not to have any adverse issues on the conservation area or raise any highway issues. On the basis that the proposal is limited to 60 delegates during term time the Highway Authority have raised no objection to the application.

Planning Policy Guidance Note (PPG) 13 : Transport specifies a car parking provision for conferencing facilities of one space per five seats. If the number of delegates was restricted to 60 during term time, when applying PPG 13 the proposal would require 12 car parking spaces. In addition, and on the basis that 60% of delegates are drivers, 60 delegates would require 36 spaces. Both these figures (taking into account the existing 10 spaces to the front of the Hall) are below the level of parking proposed."

The conclusions of the officers were in the following terms:

"There are no objections to the proposed extensions to the existing building. The building has been used for conference purposes outside term time since 1995 and it is accepted that schools and other educational facilities are used out of term time by other organisations and this is generally considered as being ancillary to the primary use of the building.

The intensification of the conference use to include the use of the building for up to 300 delegates during term time is considered unacceptable without additional on-site car parking facilities.

The 29 car parking spaces proposed do not raise any adverse issues with regards to the impact on the character and appearance of the conservation area or the neighbouring properties and therefore consideration should be given to what level of use during term time could be deemed not to have any adverse issues on the conservation area or raise any highway issues.

In consideration of this, if the use of the building was restricted during term time to a maximum of 60 delegates (excluding students), on balance and having regards to the parking standards in Planning Policy Guidance Note 13 and the applicant's survey indicating that 60% of delegates use their own car, it is considered that this would not adversely affect the character and appearance of the Conservation Area or have any adverse impact on the residential amenity of the neighbouring properties.

Therefore it is recommended that the application be approved subject to conditions restricting the number of delegates, hours of operation, parking and conditions relating to the alterations to the building."

This application was approved by the committee with a number of conditions, two of which need to be noted for present purposes:

6. Outside University term time the maximum number of non-university delegates using Gilbert Murray Hall at any one time (including the seminar rooms) shall not exceed 300 unless otherwise first agreed in writing by the Local Planning Authority.

7. During University term time the maximum number of non-university delegates using Gilbert Murray Hall at any one time (including the seminar rooms) shall not exceed 60 unless otherwise agreed in writing by the Local Planning Authority.

I will say more about those specific conditions later (see paragraphs 87-99). The objective of these conditions was stated in the reasons given for the grant of the planning permission in these terms:

"To ensure that adequate off street parking facilities exist for delegates using the conference centre and in the interests of highway safety in accordance with the aims and objectives of Planning Policy Guidance Note 13 and Transport Proposal 13 of the Oadby and Wigston Local Plan."

The debate lasted 1 hour 40 minutes. The committee (which was somewhat differently constituted than the committee that met on 6 August although there were a fair number who were present on both occasions) was equally divided on a motion to refuse planning permission. The Chairman, Councillor Boyce, used his casting vote to defeat that motion. On a motion to grant planning permission, the committee was again equally divided and it was upon Councillor Boyce's casting vote as Chairman that this motion was carried. Councillor Boyce, in accordance with his customary practice, voted in the same way when registering his casting vote as he did at the earlier stage of voting.

The basis of the challenge to that decision sought to be advanced in these proceedings is that a number of members of the committee who voted in favour of granting planning permission, including the Chairman, wrongly failed to have regard to all material considerations and that that error taints the whole decision. I should make it clear that there is no suggestion of any impropriety on the part of Councillor Boyce and it is not suggested that he was not entitled to cast his deciding vote as he did. What is said is that he effectively misdirected himself (and indeed others) about what had to be considered and, accordingly, that vitiated the overall decision.

The grounds of challenge

Ground 1

The first ground relied upon in support of the challenge to the decision is that the Defendant failed to have regard to all the material considerations since, in consequence of what is said to have been the misdirection of the Chairman to the committee, only matters which related to the stated reason for refusal of the earlier application were "acceptable to vote on". In other words, it is said that his "direction" to the members of the committee was, in effect, to focus solely on whether the new parking arrangements overcame the reasons for refusal on the previous occasion. I set out those reasons in paragraph 18 above.

The way in which the argument is deployed is as follows. In the first instance, the Development Control Manager, Mr Christopher Forrett, is recorded as answering a question from a member of the committee in a particular way. I think I should record both the question and the answer:

"Councillor Biring:

Thank you Chair, … for allowing me to come back. I would just like a very simple question. What is the difference between the last application and this application which we refused and had reason to refuse it? Can't we refuse it on the same grounds?

Mr Forrett:

… the differences between the previous application considered on the 6^th August and the current application is five car parking spaces. Four of them are in an area where the trees were, the fifth one is due to remarking out of an existing parking area. In terms of what reasons you could use in terms of this application, clearly the previous refusal is a material consideration, and I would suggest that if you were minded to refuse the application that would be a reason you may wish to look at. In terms of other reasons, bearing in mind what the nature of the differences are between the two applications, any additional reasons for refusal would have to effectively relate to what the differences were as otherwise you will be actually adding new reasons for refusal on to effectively a scheme that has already been considered by a previous committee."

This issue was returned to later in the meeting when Mr Forrett said this:

"In terms of the reasons you have just mentioned and I will go back to what are the differences between the two applications. The reason put forward by Councillor Gore was in terms of the impact on the character and appearance of the conservation area. One thing you might consider, and I am not leading you in any way on this, is the addition of the 4 car parking spaces - does that have a significant impact on the character and appearance of the conservation area? That's something for you to perhaps decide when looking at what your motion is. OK? I would suggest to you in terms of PPS6 that matter was effectively discussed in the consideration in the previous application, the differences between the two applications is not significant or material in PPS6 terms. In terms of the commercial use again there is no difference between the two applications, and in terms of the structure again no difference between the two applications, that's my advice to you - obviously you don't have to follow it, but I would warn you against it in this case."

Councillor Kaufman made the following observation immediately after that advice was tendered:

"Chair, I find this very difficult but the problem is we have come to the end of the meeting and then we are referred back to the previous planning decision, and I would say that there were problems with the previous planning decision in that the minutes were not complete."

Councillor Boyce replied that "that is a resolved issue" (which, in the light of the decision of the full Council, appears to have been so). After further interventions from Councillors Kaufman and Colin Gore the Chairman summarised the position as follows:

"OK. Mr Forrett has given advice. The advice is that refusal reason 1 and, interesting, refusal reason 5 which is the impact on the conservation area as a result of the car parking is acceptable, and he's given further advice, er, - acceptable in the sense that, as reasons, are acceptable to vote on. In terms of the issue of the structure, of commercial use and PPG6, Mr Forrett is suggesting that they are not acceptable reasons, however Councillor Gamble has moved them, do you wish them to remain?

(Councillor Gamble)

Yes I do."

Councillor Gamble's view is clear from what he said earlier which was as follows:

" … We have an application here that is exactly the same as the one six, seven weeks ago except for four extra car parking spaces. I cannot see any difference really to change this Committee's mind from the previous decision we made. I therefore propose that we reject this proposal on firstly, the traffic in the Conservation Area as before, the reason for refusal. Secondly, the structure itself under our own Conservation Area guidelines, should be of appropriate form to sit comfortably with Jacobean and neo-Georgian styles. To my knowledge I don't think aluminium fits into that sort of scheme. Thirdly, it is inappropriate for a commercial use in a residential conservation area. Fourthly, under Planning Policy Statement 6 which I have here … it clearly states that conference centres should be built within or in the surrounding area of town centres …. The full Council has agreed this Planning Policy and I think we should adhere to it ….

I really think this planning application has done nothing to improve the Conservation Area and I think if this Council was to vote in favour of this planning application, we are going against our own guidelines therefore I move refusal …."

Whilst, with respect, Councillor Boyce's observation referred to in paragraph 32 above (as recorded) hardly demonstrates a very clear analysis, it is clear from the overall interchange at this point, and given his earlier contribution, that Councillor Gamble was inviting the committee to vote on matters that were wider than merely the issue of the parking arrangements. That was, it seems, contrary to the advice of Mr Forrett. Mr Forrett, however, did emphasise that what he had said was merely "advice", albeit advice given in fairly strong terms.

At that stage the vote on the first of the two motions (see paragraph 26 above) took place and it was equally divided, Councillor Boyce being one of those who voted against refusal of the application. Councillor Boyce then cast his casting vote in the same way as he had voted in the first round of voting. He said to the committee when the tied vote emerged and as he cast his casting vote "I always vote exactly the same way as I voted the first time". This resulted in the defeat of that motion.

The committee then moved to what the Chairman said was the "substantial motion which is to approve with the appropriate conditions". There was a debate about certain conditions, but when the eventual resolution was put the same result obtained and the Chairman cast his vote in support of the grant of the application.

I will deal with the specific contentions about this shortly, but some general observations on the way in which this ground is advanced (and indeed others based upon an analysis of the transcript) are called for. It is, I am told, unusual (though, of course, not unheard of) for proceedings of a planning committee to be recorded in the way that the Council in this case recorded them. I do not know the full background to the reasons for taking this course, but it does enable an accurate transcript to be prepared should one be needed and it would enable the minute-taker to check whether his or her note of the salient parts of the proceedings are accurate. It may simply be thought that it is in the public interest for a full record to be kept. Parliamentary committee proceedings are recorded so it is not a great leap for proceedings such as those of a local planning committee also to be recorded. There may, one supposes, be political reasons for doing so also.

Mr Timothy Leader, for the Council, said in his prefatory remarks in his Skeleton Argument that "unfortunately" the Council in this case had adopted the practice of recording its meetings. Whilst I do not think I can quite share that sentiment, what I do think would be highly unfortunate is if a practice or an "industry" was allowed to grow of obtaining transcripts of meetings of this kind as a matter of course and subjecting every word spoken to minute scrutiny in an endeavour to find the basis for an argument in support of a judicial review claim. That cannot be in the public interest. Whilst it would be impossible to say that such evidence should not be received in appropriate circumstances (because occasionally a transcript may offer the best evidence that a planning committee has or has not erred sufficiently for judicial review purposes), the development of the kind of practice to which I have referred would, to my mind, need resisting strongly.

It is important to recognise that a planning committee meeting is just that: a meeting of the members of a local planning committee. Decisions are made by a majority vote when an obvious consensus does not exist. As with most committees, whether of a public or private nature, individuals may come to a meeting with a preconceived notion of the view they will adopt to a particular item on the agenda. However, during the course of discussion, when other views are aired and debated, those preconceived views may change. That is the whole essence of a successful and dynamic committee and of what true service in a public office involves. If, as will sometimes be the case, the opportunity to articulate a changed view does not always present itself at the meeting, the record of someone's oral contribution may be at variance with his or her eventual vote. All sorts of dynamics can occur that may mean that what someone is recorded as having said is not translated into an eventual vote that clearly indicates what was in the individual's mind at the time of voting.

Furthermore, the actual articulation of an argument can sound very different when it is heard than how it appears to be from the written word in the form of a transcript. What may appear to have been strongly expressed may have been a "throw away" line and vice-versa. These are just a few considerations that make a fine textual analysis of what is said at such a meeting in the search for some clearly defined error of reasoning fraught with difficulty.

Finally, a Chair's role on a planning committee must not be equated with the role of a trial judge in a criminal trial. The Chair is there to ensure that those members of the committee who wish to contribute to the discussion of a particular application have a fair opportunity to do so. The role involves keeping contributions essentially to the point otherwise a great deal of time and energy is wasted. A Chair is also simply one member of the committee whose view, subject to the right to a casting vote in the event of a tied vote, is equal with that of everyone else. There will be different styles of Chairmanship. Councillor Boyce said very clearly at the meeting that he was "not obliged to be impartial" and that he had "a vote like anybody else". I imagine that his view of his role was well understood. Given the opportunity for members of the public to address meetings of a planning committee, dealing with their contributions courteously, fairly and firmly would be something that a Chair would regard as an essential role.

So what is to be made of the voting that occurred in this case? A reading of the transcript does not necessarily reveal a clear thread to the arguments. That is almost inevitable when trying to determine from the cold black and white of the printed word the essence of what emerged from a somewhat unstructured discourse. On the other hand, it is difficult to believe that the councillors who were present, a good number of whom participated in the debate (and had presumably taken part in the discussions on 6 August), did not know precisely what they were voting on when the various questions were put to them.

What is, however, clear is that the committee did vote on a motion for rejection of the application on grounds other than merely that the arrangements for parking were inadequate and of the effect which that inadequacy would have upon parking within the Conservation Area. That appears to be the clear intention behind Councillor Gamble's motion. That being so the inference must be that the whole committee (including the Chairman) should be taken to have rejected Mr Forrett's advice and thus considered the wider implications when voting on a motion to reject the application for planning permission.

If, as it seems to me, that is the correct conclusion at which to arrive in relation to the votes of all members of the committee at that stage, is it then appropriate to decide that the casting vote of the chairman was constrained by Mr Forrett's advice? That seems to me to be the effect of the submission made on behalf of the Claimants.

I have to say that, whatever view the Chairman may have communicated to everyone else, his own views on the merits of the planning application are clear: he was in favour of it and would not have been willing to reject it on any ground unless that ground was more compelling at the meeting on 1 October than it had been on 6 August. Since it is plain that the "new" application went some way to meeting the "parking issue" objection that had had an impact at the meeting on 6 August, it would have been illogical for the Chairman to have voted differently. However, I do not see how it could be said that he was confining himself solely to the "parking issue": his vote was in substance a vote for the proposal based upon what he perceived to be "all material considerations."

I do not think, in those circumstances, that I can accept fully Mr Leader's submission that Councillor Boyce's contribution to the meeting showed that he "focused on the merits of the proposal with an open mind". His mind had plainly been made up by no later than the end of the meeting on 6 August and would, as I have said, only have changed if some more compelling planning g objection had been raised at the meeting on 1 October. What, in my view, is plain is that on 1 October he did not address the question of his own vote, whether as an "ordinary" vote or as a casting vote, solely or even substantially by reference to the question of whether the new parking arrangements enhanced or did not enhance the character of the Conservation Area. In relation to his vote, I do not think that different advice from Mr Forrett would have made any difference. Indeed, if anything, it would have confirmed him (Councillor Boyce) in the belief that he was entitled to vote as he had done before.

It seems to me, therefore, that the only basis upon which this ground could even arguably succeed would be if it could be demonstrated that other members of the committee voted in favour of the grant of planning permission on this occasion because they felt they had no alternative but to do so given the advice received. Given the closeness of the vote, then one member voting the other way would have made a material difference. However, despite the persuasiveness of his submissions, Mr Michael Bedford was, in my judgment, unable to point to any part of the transcript that indicated (to any standard of proof) that this occurred.

For my part, I would have been content to reject this ground simply on the basis that it has not been demonstrated to my satisfaction that there was a real possibility that, but for what the chairman and Mr Forrett said, the committee would have come to a different decision.

However, Mr Leader places reliance also on what the Chairman has said subsequently was the intention behind the observation quoted in paragraph 32 above. In a witness statement prepared for these proceedings Councillor Boyce has said that when he repeated the advice of Mr Forrett he was giving advice to his colleagues on what "might sensibly amount to sustainable reasons for refusal of planning permission".

Mr Bedford submits that this new evidence should be given little, if any, weight and draws attention to what Maurice Kay J, as he then was, said in R (D) v Home Secretary [2003] EWHC 155 (Admin) at paragraph 18:

"It is well established that the court should exercise caution before accepting reasons for a decision that were not articulated at the time of the decision but which were only expressed later, in particular after the commencement of proceedings."

I accept, as Mr Leader says, that the object of this evidence is merely to explain to the Court what was actually in his mind when he gave the advice and, to that extent, does not amount to "reasons for a decision" in the sense of Maurice Kay J's observations. However, any ex post facto explanation does have to be viewed with some caution: history cannot be re-written. Nonetheless, there is no doubt, on a fair reading of the whole transcript, that the Chairman (with the support and encouragement of the Development Control Manager) was anxious that those members of the committee who were minded to vote against the proposal should do so only on proper planning grounds. That is certainly a legitimate matter for a chairman of a planning committee to remind the committee members: there are potential costs consequences for the local authority if an appeal against a decision is successful and the general credibility of the committee must be retained. How this reminder is given in any case depends on the context and is a matter of personal style for an individual chairman. As I say, having read the transcript as a whole, I consider it is fair to say that Councillor Boyce did remind members of the committee on a number of occasions about this factor and this particular observation can be seen as one such reminder. It is an additional factor for saying that the committee were not misled or misdirected.

For those reasons I am unable to accept that this ground has been made out.

Ground 2

This ground suggests that that the committee was wrongly advised about the status of the existing conference use to which the dining hall was put and that this impacted on the assessment of the planning merits. It is suggested that at least one member of the committee relied on this advice in making the decision.

The report of the officers was that 10 years continuous use out of term time "cannot be demonstrated". The report continues by saying that "it is common for educational establishments to be used out of hours or out of term time by other organisations and this is widely accepted as being ancillary to the primary use of the building." As a result it was concluded that "the continuation of the use of the building outside term time only with no additional parking provision is considered acceptable." However, it is argued that different advice was given by Mr Forrett. To put matters in context, I should record how the "advice" was tendered. The Chairman asked a question of Mr Forrett in the following terms to which he replied as indicated:

"Chairman

Mr Forrett, can you just clear up something? Mr Gasztowicz mentioned that if it is was in continuous use for 10 years then it would actually gain effectively exemption and therefore effectively gain planning permission. Now on the list given, from 1995 through to the present day there are a significant number of usage on that site for conferences each year. I accept that in 2000 and 1999 - April I suspect was Easter so you could argue that they were out of term time. I am just concerned that what we need to do is make sure we understand the rules on that and anything else you wish to comment on.

Mr Forrett

… in terms of the continued use of the building as a conference centre, from the information that we have it is reasonably clear that outside term time the building has been used for conference facilities for a period in excess of 10 years. What does that mean? Well, it effectively means that that use outside term time would be immune from enforcement action. It doesn't make it lawful, it just makes it immune from enforcement action. The only way to make it lawful is to apply for a certificate of lawful development.

In terms of conference use during term time it would appear that there is insufficient evidence to demonstrate a 10 year use continuously and therefore what Mr Gasztowicz said is correct about that being unlawful and effectively could be subject to enforcement action, is correct. I will comment I think later when I have heard other members' views perhaps before a vote and I'll listen to some further debate."

Shortly after this view was expressed, Councillor Colin Gore made the comment that if the "current use of the building as an all round conference centre … is not currently legal", was it possible "to start enforcing it"? The Chairman made the following observation:

"No, no. Irrelevant my own view, as I made clear last time, if we refuse it follows that enforcement should take place. That is absolutely the right approach. If we refuse, we will have to take enforcement action, but it is also clear from what Mr Forrett said that enforcement can only be against in-term conference use, because the view he has formed is that the outside of term time has established use and cannot be enforced against."

Mr Forrett reverted to the matter later when the Chairman asked whether, if planning permission was refused, enforcement action could take place for the out of term use of the building as a conference centre. He said the following:

"In terms of outside term time, from the information given with a previous application for this [it] indicated that there has been in excess of 10 years conference use, and on that basis it would hardly be reasonable of the authority to take enforcement action on conference use outside term time."

It is argued on the Claimants' behalf that the advice given was fundamentally wrong, both legally and factually. It is said that the figures advanced on behalf of the University for out of term use of the old dining room for conferences did not show continuous use of the dining room for such purposes even during non-term time (but merely occasional intermittent use). Furthermore it is said that, to become a lawful use, 10 years continuous use throughout the year as an unauthorised conference centre would need to have been shown (in other words, not just out of term use for parts of the year). It is argued that, had the erroneous advice, as it is described, not been given, there was a real possibility that a different decision would have been reached.

Mr Leader argues, in the first instance, that the effect of Mr Forrett's final advice was not that the out of term use was lawful, but that enforcement action against this use "would hardly be reasonable", a view, he contends, that plainly indicates enforcement action would be possible, but not something he would recommend. That, he says, is a matter of planning judgment, not law. I will return to this shortly.

Given the suggested misdirection of the committee, it is important to consider the impact that the misdirection is said to have had. In his Skeleton Argument, Mr Bedford suggested that the true impact was on the perception that members of the committee would have had on the car parking issues. He suggested that if the car parking during the out of term time periods generated by the existing conference use had to be accepted because of an irremediable immune use, it "would be highly material to any assessment of the harm resulting from the parking generated by the proposed conference use in the same out of term time periods." Conversely, he argued, if the existing out of term time conference use was not immune and could be enforced against, the "unauthorised parking impacts would have little or no materiality in assessing the harm caused by the proposed use." He contended that if "there was already a lawful conference use that would generate car parking during the out of term time periods (as Mr Forrett asserted) this would plainly be relevant to an assessment of the acceptability of what was proposed." However, if the proposition that there was such a lawful out of term time use was legally flawed, then, he argued, "the decision maker would be wrong to include it in the assessment [because it] would be an irrelevant or immaterial consideration."

It is a subtle argument. An analysis of the transcript, however, does not suggest to me that the legality or illegality of the out of term use so far as the implications for parking were concerned was a matter of concern to any of the contributors to the debate. Some who were opposed to the proposal appeared to express the view that permitting the application would effectively allow the University to "get away" with what had been done previously without planning permission. But, despite Mr Bedford's argument to the contrary, I am unable to see where any councillor who voted in favour of granting planning permission did so wholly or partly on the basis of Mr Forrett's advice. Even if that had been demonstrated, it would be necessary to show that the advice was plainly wrong. Although a confident assertion to that effect is made on behalf of the Claimants, this seems to me to be an area where, given the uncertain factual matrix, the legality or illegality of the former use was something of a grey area. Mr Forrett's advice seems to represent a pragmatic approach which enabled those who thought the previous activity to have been illegal to give such weight to that matter as they thought appropriate and those who did not, or at least recognised the council's inability to do anything about it, to give weight to that also.

The net result of all this is that I have not been persuaded that there was any material misdirection of the committee. The committee was aware of the past out of term use of the dining hall on the basis of what had been revealed about it in the application for planning permission. They were able to give such weight to that use as they thought fit. As I have said, the relevance of the issue suggested on behalf of the Claimants does not appear to have weighed heavily with those members of the committee who were in favour of the proposal. Mr Leader has suggested that is unclear why the legal status of the conference use of the dining hall for a part of the year would be particularly relevant to a proposal for, what he argued, was "a qualitatively different, all year round conference use." The out of term use had not generated, he contended, a need for additional car parking during vacations which was unsurprising because most of those who would have used the existing car parking spaces were not there at the time. The result is that the out of term use did not, he suggested, cause a parking problem or harm the conservation area, that it did not matter for this purpose whether that use was lawful or unlawful and the legal status of the out of term use did not answer the question (which was before the committee) of whether an all year round use cause a deleterious parking problem to the Conservation Area.

I think there is force in that contention, although I think it gets rather close to an examination of the planning merits of the issue and, as such, is not something that I should regard as persuasive. But, as I have said, I do not think that this ground has been made out.

Ground 3

The error alleged in Ground 3 is that the committee was not given the full facts in relation to the 2002 planning permission for car parking in part of the grounds where new parking was proposed and so failed to take into account a material consideration in relation to that planning permission.

The Claimants complain that no mention was made at all by the officers or anyone else that the 2002 permission had lapsed and no reference made to the fact the 2005 Conservation Area Appraisal (which post-dated this permission) had highlighted the "general lack of parked cars" on the roads as a positive characteristic of the Conservation Area. It is suggested that even if the proposal under consideration was to maintain something previously approved, it did not follow that this made the same proposal acceptable after the Appraisal. I assume that the Appraisal was accepted.

The advice given by the officers about the 2002 planning permission before the meeting on 6 August is set out in paragraphs 14 and 15 above. The advice in the report preceding the meeting on 1 October was as follows:

"There is no objection to the proposed 25 parking spaces fronting the residences to the rear of Gilbert Murray Hall as planning permission was granted for 20 spaces plus 3 disabled parking spaces in this location in 2002. The location of the 4 spaces to the rear of the existing car parking area will involve the loss of six trees which were classed as Category C trees in the original Tree Assessment Report (March 2009). Category C trees are considered to be of low quality and value but could remain until new planting could be established."

Mr Gasztowicz had written (by e-mail) to the planning officer, Mrs Carey, on 29 September 2009 (having read the officers' report) to point out that the 2002 permission "has now lapsed and the conservation appraisal has since been made". The full paragraph in which that assertion was made was as follows:

"You refer in your current report to the 2002 approval of 20 car parking spaces alongside the existing student blocks opposite Bowder Court as justification for allowing those spaces (and indeed, even more) now (although that has now lapsed and the conservation area appraisal has since been made)."

It should, perhaps, be noted that this letter was largely addressed to further consideration of "the appropriate conditions in the event that the application for the conference centre is somehow allowed." It does not appear to have been written of itself with a view to objecting to the principle of the development although, of course, it must have been plain to Mrs Carey that the objections previously made still applied.

One argument advanced in the present proceedings is that the 2002 planning permission also involved the removal of other existing parking so that it did not involve a net addition of 23 parking spaces. If that is correct, it does not appear to have been a point raised specifically in the letter of 29 September.

In an oral contribution to the meeting on 1 October Mrs Carey said this:

"A total of 29 additional parking spaces are proposed to support the increased use of the building, an increase in 4 from the previously refused application. The 25 spaces proposed fronting the Gilbert Murray Hall residences will involve the loss of an area of green space, however they are in a similar location to 23 spaces previously approved in August 2002, and whilst this was prior to the Conservation Area Appraisal, they were still within the Conservation Area at that time. Whilst the Conservation Area Appraisal indicates one of the characteristics of the Conservation Area as being the absence of on street parking, the local planning authority has no control over vehicles parking on street, and the Highway Authority raise no objection …."

It follows that the committee was informed that the 2002 planning permission was before the Conservation Area Appraisal, but it seems to be the case that no specific reference was made to the fact that the planning permission had since expired which, it is argued, "went directly to the weight that should be properly given to the permission": see South Oxfordshire District Council v SSE [1981] 1 WLR 1092, where Woolf J, as he then was, said -

"A planning authority is thus in no way bound by a previous planning permission which has now expired. However, the fact that it is in no way bound, does not mean that it is forced to wholly disregard that pre-existing permission. That there was a pre-existing permission may still be a relevant or material consideration which a planning authority is permitted to take into account, though it must do so properly, and, as it is unlikely to be of great moment, not give it more weight than appropriate."

Given the way the matter had been raised in Mr Gasztowicz's letter (see paragraph 66 above) the prominence given to this submission in the Skeleton Argument and its alleged importance is somewhat surprising. Nonetheless, the argument needs to be addressed. Is it an omission that, if it had not occurred, could have made a difference to the outcome?

In my judgment, it would have to be demonstrated that there is a real likelihood that one or more members of the committee who voted in favour of granting planning permission attached undue weight to the previous planning permission and that it made a material difference to the way they voted. Again, this appears to be a matter that did not figure in any of the oral submissions of the members of the committee and, of course, the weight to be attached to a previous planning permission is very much a matter of planning judgment. The previous permission was referred to in the officers' report to which I have already referred, by Mrs Carey in the terms to which I have drawn attention and also by Mr Forrett in the following terms:

"Moving on the other aspects of the development which essentially is the provision of extra car parking spaces you have got the green area here which is shown on the photograph. That's the area in which the permission back in 2002 allowed for a similar amount of parking spaces, so that principle, although historic, has already been established. The additional bit which the current application gives is 4 spaces in this area which isn't actually very clear on this, but is this area here, which is probably not very clear either, which is 4 spaces there. That is where there are some trees, in fact those are the trees that are in the opinion of the county arboriculturalist not worthy of a preservation order and their loss would not harm the character and appearance of the conservation area, so I would suggest to you, in conclusion that given what the proposal is it would not harm the character and appearance of the conservation area"

It is suggested on the Defendant's behalf that the reason the 2002 permission was referred to by the officers was to demonstrate that the Council had previously decided the use of an area of grass for a number of car parking spaces would have no material impact on amenity. As will be apparent from the foregoing part of the transcript, Mr Forrett was undertaking a visual demonstration during the meeting. That neither he nor the other officers elevated the 2002 permission to something of real importance is demonstrated, Mr Leader argues, by the fact that it was pointed out that the permission was "historic" in the sense it was obviously dated. The committee plainly knew that the 2002 decision was 7 years old and that it had not been implemented. These seem to me to be propositions of commonsense in the circumstances of this case and it is unnecessary to have recourse to the well-established consideration that members of planning committees acquire a "working knowledge" of planning law (see, e.g., Oxton Farms and ors v Selby District Council and ors [1997] EGCS 60) or indeed to the evidence of Councillor Boyce in his witness statement in which he states that he is "sure [his] colleagues recognised a consent granted more than 5 years previously and not commenced would have lapsed". Nonetheless, those considerations would lend force to the commonsense conclusion to be derived from the circumstances.

I do not consider that this ground has been made out.

Ground 4

Here it is said that the committee was not told properly about PPS6 and thus did not take its policies into account when making its decision.

I have already noted what Councillor Gamble said about PPS6 when setting out the matters upon which he invited a vote to reject the application for planning permission at paragraph 33 above. Mr Forrett's reference to PPS6 is quoted at paragraph 30 above. He (Mr Forrett) was pointing to the fact that the issue had been addressed at the meeting on 6 August. I will return to these matters shortly, but should set out the relevant parts of PPS6 that are said not to have been considered correctly by the planning committee.

The provisions relating to the selection of sites for developments including conference facilities are as follows:

2.28 In selecting sites for development, local planning authorities should:

a) assess the need for development (paragraphs 2.32–2.40);

b) identify the appropriate scale of development (paragraphs 2.41–2.43);

c) apply the sequential approach to site selection (paragraphs 2.44–2.47);

d) assess the impact of development on existing centres (paragraph 2.48); and

e) ensure that locations are accessible and well served by a choice of means of transport (paragraphs 2.49–2.50).

The "sequential approach to site selection" is elaborated upon later in the following way:

2.44 A sequential approach should be applied in selecting appropriate sites for allocation within the centres where identified need is to be met. All options in the centre (including, where necessary, the extension of the centre) should be thoroughly assessed before less central sites are considered for development for main town centre uses. The sequential approach requires that locations are considered in the following order:

first, locations in appropriate existing centres where suitable sites or buildings for conversion are, or are likely to become, available within the development plan document period, taking account of an appropriate scale of development in relation to the role and function of the centre; and then

edge-of-centre locations, with preference given to sites that are or will be well-connected to the centre; and then

out-of-centre sites, with preference given to sites which are or will be well served by a choice of means of transport and which are close to the centre and have a high likelihood of forming links with the centre.

…

3.13 The sequential approach to site selection should be applied to all development proposals for sites that are not in an existing centre nor allocated in an up-to-date development plan document (see also paragraph 3.29). The relevant centres in which to search for sites will depend on the overall strategy set out in the development plan, the nature and scale of the development and the catchment that the development seeks to serve.

3.14 In selecting sites, all options in the centre should be thoroughly assessed before less central sites are considered. The order for site assessment is set out in paragraph 2.44.

It is suggested that the members were not told about the sequential approach to site selection and, therefore, did not apply it. It is argued that no assessment was made of whether a proposal to provide conferences catering for some 300 delegates from across the country should be located in Oadby town centre or in Leicester City Centre or of whether there were any suitable sites in or on the edge of either centre. Without any assessment of these matters, the policy in PPS6 was not, it is said, being applied.

Because no transcript of the planning committee proceedings on 6 August is available, it is not possible to see precisely how arguments relating to PPS6 were deployed. The officers' report for that meeting certainly made reference to PPS6, but there was no detailed analysis of the way in which it was to be considered. There seems little doubt that it was discussed because one of the complaints made about the reasons given for refusing planning permission at that meeting is that the perception of those observing was that PPS6 was one of the reasons considered by at least some of the members of the committee as being a valid reason for refusal (see paragraph 19 above).

It does appear that PPS6 was a focus of debate on 1 October. In his address to the committee Mr Gasztowicz gave this as one of the "significant planning reasons" for refusing permission:

"First under PPS6, which the Council is bound to apply, conference centres should go in town or city centres. It is really just a matter of common sense, as well as Government policy - not in an unsustainable location like this, out of centre. The University has no permission at the moment and it is not right to give it permission."

His letter of 29 September on behalf of himself and the Claimants referred to PPS6 in similar terms

Mrs Carey, just before saying that which I have quoted in paragraph 69 above, said this:

"Planning Policy Statement 6 suggests that conference facilities should be located within town centres however, the proposal is not for a purpose built conference facility, and in terms of floor space is relatively small. Use of the building will be a mixed use for student accommodation, university based events and non-university events."

Mr Leader submits that this indicates that Mrs Carey was simply making what he submits is the commonsense observation that from a practical development control point of view it was unhelpful to focus on whether a proposal to refurbish the dining hall currently used as a conference facility "to produce something more commodious ought to entail a search for sites in neighbouring town centres." Another approach was, he submitted, simply to acknowledge (as Mrs Carey did) that the proposal related to an out of town centre site in conflict with PPS6. This avoided the need to carry out a site search as suggested by the Claimants. Whichever approach was adopted, he submitted that PPS6 was not ignored.

Whilst, with hindsight, I think it would have been preferable if the officers' reports had dealt in greater detail with the implications of this policy, the real issue is whether, taken in the round, the committee (a) was informed of the policy, (b) recognised its essential impact and (c) gave it such weight as it considered appropriate. There is no doubt that the committee had the policy drawn to its attention on a number of occasions at the meeting on 1 October (leaving aside the content of any debate that there had been about it on 6 August), had the opportunity to seek further guidance about it if they wished and had the opportunity to vote against the grant planning permission by reference to considerations that included the implications of PPS6.

I find it impossible in those circumstances to say that the issue was not properly joined and that the committee failed to take into account a material consideration. The PPS was not itself to be applied as a statute and, as it seems to me, it was within the province of the committee to say that it did not materially affect the outcome of the debate about whether planning permission should be granted for this particular application. Again, I do not consider that this ground is made out.

Ground 5

Here the complaint is that it was irrational to impose planning conditions to mitigate the identified harm which were "demonstrably ineffective to achieve their purpose".

The conditions to which this ground is directed are set out in paragraph 24 above. The conditions were recommended by the officers. It is argued that the officers' advice was flawed because it was predicated (i) on a belief that the out of term time use would involve no more than 300 delegates, (ii) on the assumption that the term time use would be restricted to 60 delegates (excluding students), (iii) that those delegates would not require more than the 39 on-site parking spaces being provided and (iv) that the proposed conditions would secure these outcomes.

Mr Leader takes a fundamental point in response to this argument irrespective of the merits. He draws attention to the statutory provision under or by virtue of which conditions may be imposed. Section 70(1) of the Town & Country Planning Act 1990 authorises the grant of planning permission subject to conditions and section 72(1) of the Act provides (so far as material) as follows:

Without prejudice to the generality of section 70(1), conditions may be imposed on the grant of planning permission under that section—

(a) for regulating the development or use of any land under the control of the applicant (whether or not it is land in respect of which the application was made) or requiring the carrying out of works on any such land, so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission ….

He emphasises the words "so far as appears to the local planning authority to be expedient for the purposes of or in connection with the development authorised by the permission" and argues that this provision confers a wide discretion on a local planning authority to determine what is expedient (in other words, what is reasonable and necessary) to make the development acceptable having regard to all the circumstances of the particular planning application.

He submits that the court should be very slow to set aside by way of judicial review a planning permission granted subject to conditions which are said to be irrational and contends that too ready an acceptance of an argument that a condition or conditions lack efficacy would "open the floodgates" to challenges of such a nature.

Whilst I can accept that a court would be reluctant to interfere with a planning permission granted on the basis of a condition or conditions expressly designed to mitigate some of the concerns about the grant of planning permission at all, at the end of the day this seems to me to be nothing more than a reflection of the well-established approach that the bar to finding irrationality established as a high one. If a condition simply cannot be implemented in a way that meets a fundamental objection to the grant of planning permission itself, then that would certainly, in my judgment, represent a starting-point for consideration of whether the grant of the planning permission can itself stand. However, an issue about whether, in a practical sense, everything (or, at least, everything that is truly material) that an objector to the principle of the development itself objects to is met by the imposition of a condition is an area that is, it seems to me, very much an issue that lies in the realms of planning judgment. Planning committees throughout the country must deal with this kind of issue on a daily basis.

Applying that approach, where does that leave the submissions made on behalf of the Claimants?

It is argued on behalf of the Claimants that Conditions 6 and 7 of the planning permission (see paragraph 23 above) did not secure the objectives referred to in paragraph 25 above because (i) the out of term time use was not restricted to 300 delegates, but only to "non-university delegates", and (ii), for the same reason, the term time use was not restricted to 60 delegates (excluding students). It is argued that the conditions fail to achieve the restrictions intended because the terms "university delegates" and "non-university delegates" are said to be "not synonymous with students already lawfully using the site as a hall of residence on the one hand and all other persons on the other."

It is contended that people on distance-learning courses would not be subject to either the vacation or term time limit. It is suggested that this is capable of defeating the whole purpose of the conditions.

Mr Leader argues that in relation to Condition 6, during university vacations most students will have gone home taking such cars as they have with them. Those who come to attend conferences outside term time will not be students, but "non-university delegates". The condition therefore limits the number of non-university delegates to 300 which is the intended capacity of the conference facility. Condition 6 therefore limits the number of delegates to the capacity of the conference facility and the capacity of the car parking space.

Condition 7 prevents more than 60 "non-university delegates" attending the conference facility during term time. The intention appears to be that someone not formally enrolled on a course provided by the University will be a "non-university delegate".

"Distance learners" will therefore fall into one or other category: if they are not formally enrolled on a course provided by the University they will be a non-university delegate. If they are enrolled on a course, they will be a "university delegate".

Whilst I can understand that policing these conditions may be difficult, I am unable to see why it should be said that each is "irrational". Accordingly, I do not consider that this ground of challenge to the grant of planning permission can be sustained.

Ground 6

It is contended that an inadequate summary of the reasons for the decision were provided.

Although I was not referred to it in argument, the case of The Queen on the application of Siraj v Kirklees Metropolitan Council [2010] EWCA Civ 1286 sets out a helpful analysis of what is required by way of reasons in this context. Sullivan LJ (with whom Elias and Tomlinson LJJ agreed) said this:

"14 A local planning authority's obligation to give summary reasons when granting planning permission is not to be equated with the Secretary of State's obligation to give reasons in a decision letter when allowing or dismissing a planning appeal. I mention this because, although Mr Roe in his oral submissions before us recognised that there was indeed such a distinction between summary reasons and the reasons to be expected in a decision letter, the appellant's skeleton argument relied on the speech of Lord Brown in South Bucks District Council v Porter (No 2) [2004] UKHL 33; [2004] 1 WLR 1953 at paragraph 36. It is important to remember that that case was concerned with the adequacy of reasons in a Secretary of State's decision letter. Although a decision letter should not be interpreted in a vacuum, without regard for example to the arguments that were advanced before the inspector, a decision letter is intended to be a "stand-alone" document which contains a full explanation of the Secretary of State's reasons for allowing or dismissing an appeal. By their very nature a local planning authority's summary reasons for granting planning permission do not present a full account of the local planning authority's decision making process.

15 When considering the adequacy of summary reasons for a grant of planning permission, it is necessary to have regard to the surrounding circumstances. precisely because the reasons are an attempt to summarise the outcome of what has been a more extensive decision making process. For example, a fuller summary of the reasons for granting planning permission may well be necessary where the members have granted planning permission contrary to an officer's recommendation. In those circumstances, a member of the public with an interest in challenging the lawfulness of planning permission will not necessarily be able to ascertain from the officer's report whether, in granting planning permission, the members correctly interpreted the local policies and took all relevant matters into account and disregarded irrelevant matters.

16 Where on the other hand the members have followed their officers' recommendation, and there is no indication that they have disagreed with the reasoning in the report which lead to that recommendation, then a relatively brief summary of reasons for the grant of planning permission may well be adequate. Mr Roe referred us to the observations of Collins J in paragraph 28 of his judgment in R (on the application of Midcounties Co-operative Ltd) v Forest of Dean DC [2007] EWHC 1714 (Admin). For my part, I would respectfully endorse the observations of Sir Michael Harrison in paragraphs 47 to 50 of R(Ling)(Bridlington) Limited v East Riding of Yorkshire County Council [2006] EWHC 1604 (Admin)."

The essential criticism made of the summary reasons is that they make no mention of the refusal of planning permission on 12 August 2009 (following the meeting on 6 August) for a development which was identical save only for the addition of 4 or 5 more parking spaces. Neither the officers' report nor any oral comments of officers at the meeting, it is said, provided any assessment of the earlier refusal of permission or any explanation as to how or why the addition of 4 or 5 more parking spaces would or could overcome the previous objection.

Mr Leader's argument is that, taken as a whole, the reasons provided were perfectly clear and adequate. The duty to give its reasons under Article 22 was discharged by the Defendant by addressing the overriding issues in the following way:

"Oadby and Wigston Borough Council is of the opinion that the use of part of Gilbert Murray Hall as a mixed use facility for student and conference use, gives rise to no material harm and is broadly consistent with the aims and objectives of Planning Policy Statements 1 and 6, Landscape Proposals 1 and 3 and Transport Proposal 13 of the Oadby and Wigston Local Plan.

The proposed alterations to the building will make a positive contribution to the character and appearance of Oadby Hill Top and Meadow Court Conservation Area and is in accordance with the aims and objectives of Planning Policy Guidance Note 15 and Landscape Proposals 1 and 3 of the Oadby and Wigston Local Plan, the Conservation Area Supplementary Planning Document and Oadby Hill Top and Meadowcourt Conservation Area Appraisal and Development Control Guidance.

The proposed car parking will not have a significant impact on the character and appearance of the Oadby Hill Top and Meadowcourt Conservation Area or the amenity of nearby residential properties and is in accordance with the aims and objectives of Planning Policy Guidance Note 15 and Landscape Proposals 1 and 3 of the Oadby and Wigston Local Plan and Conservation Area Appraisal and Development Control Guidance.

The proposed additional use as a conference facility will not have a significant impact on traffic generation or highway safety in the area in accordance with the aims and objectives of Planning Policy Guidance 13 and Transport Proposal 13 of the Oadby and Wigston Local Plan."

Given the emphasis placed upon parking issues at the meeting on 6 August, it seems to me obvious that the modest increase in the number of parking spaces to be provided did represent, and was intended to represent, a material change from the proposal then considered. For my part, I cannot see that there was anything inadequate about the way in which the reasons given for the ultimate granted planning permission were summarised.

Ground 7

The contention here is that the committee had regard to an immaterial consideration in that it was advised that the conference use was an "ancillary use" and that, accordingly, the planning consequences of its continuation were acceptable.

The conference use was referred to in the officers' report as an "ancillary use" (see paragraph 23 above), but the report went on to say this:

"However, from 2001 onwards the summary table indicates that the use has intensified and conferences are held both inside and outside term time. This is no longer considered ancillary to the primary use and would be considered a material change of use. As this has only been occurring since 2001 ten years of continuous use cannot be demonstrated."

It is contended by the Defendant that the advice was clear: the committee was informed that the conference use was not an ancillary use in the sense that, if it had been at one stage, it had ceased to be so. Since no member of the committee, so far as I can judge from the transcript, mentioned this aspect at all, (a) it does not appear to have been a material factor taken into account and (b), in any event, the present status of the conference use was not misstated.

If I understand the argument correctly, Ground 2 appears to be an alternative ground to this ground.

I am unable to see the basis for the criticism lying behind this ground.

Ground 8

Here the contention is that the committee was not informed by the officers of other relevant planning decisions which, it is said, were material to the issues to be considered.

Attention is drawn to the refusal in 2002 of an application by the University for a conference centre on the land adjoining Gilbert Murray Hall to the east (which at the time of the refusal was not in the Conservation Area but which has subsequently been added to it) and the refusal in 2004 of an application by local residents for community uses on nearby land within the Conservation Area.

It is contended that the 2002 and 2004 refusals were material considerations because each was for development in the same locality as the proposal under consideration which would have a similar impact to that development (albeit in the case of the 2004 refusal significantly less in terms of scale) and those impacts had been found by the Defendant to be unacceptable. The argument for the Claimants is that it was for the committee to decide what weight to attach to these decisions and since the committee was not told about them it was not in a position to evaluate their significance.

It is not disputed that no specific reference was made to either application in the officers' report or in any oral contribution by an officer to the committee. It is, perhaps, to be noted also that none of the (obviously) experienced councillors referred to the decisions either. In fact Mr Gasztowicz did not mention it in his presentation to the committee either.

The Defendant's position, as set out in Mr Leader's Skeleton Argument, is that the officers were entitled to exercise their professional planning judgment in concluding that refusal of planning permission seven years previously "for a qualitatively different conference facility on a different site, and an entirely different proposal on a different site" did not need to be reported to the planning committee because they would shed little light on the principal issues before the committee.

In my judgment, there is insufficient material before me to suggest that this represented an error of judgment or a sufficiently important error of judgment on the part of the officers to conclude that the committee did not have material matters put before them for consideration. It appears that the Claimants in reality accept that the 2004 matter was different in significant respects from the proposal in the present application. The 2002 application was described in the terms I have mentioned in paragraph 114 above and there is nothing before me to suggest otherwise.

For those reasons, I do not consider that this ground has been established.

Ground 9

The final ground in support of the application is that the committee was wrongly advised by the Chairman (i) that a Government target in relation to the success rate on appeals won and lost would be a material consideration in determining a planning application and (ii) that there was a presumption in favour of allowing development.

The full passage of the transcript of the meeting to which this ground is as follows. The part that is emphasised is the part to which the Claimants draw attention in support of their argument:

"Can I also touch on this issue of appeals? This committee actually should be mindful of appeals. In fact planning committees are targeted not to lose more than a percentage of appeals because Government policy is clear that (a) the presumption is with the applicant, and secondly that the presumption is that the condition should be used rather than a refusal. Now it may be that in this instance people wish to vote against and say that there aren't conditions that can be used. It may be … that there are conditions that can be added and strengthened, but we are entitled to decide whether we would win an appeal. We are entitled to actually take, in that sense, the potential damage to the whole of the authority that an appeal can do. However we are required to act reasonably. Neither the applicant nor the objectors have that incumbent upon them. Now that doesn't mean that they are either acting unreasonably or not, I am simply laying out what we as a committee are obliged to do, and when discussions come about, and it's not just this application, it is often when members say those planning reasons will not stand up on appeal that is obviously an opinion, but it is also an important material fact that we have to take into account within our judgment. We are not entitled to recklessly refuse an application. Now it is clearly for all members to have that view on their own. They are simply what we as Councillors have to think about when we vote …."

The point was picked up shortly afterwards by Mr Forrett in these terms:

"OK, In terms of appeals I think that Councillor Boyce effectively answered your question. What I would add is that if as officers we had felt that development was unacceptable we could sustain reasons for refusal, we would have been recommending it. The fact that we are not and recommending a number of restrictive conditions says that if we were to look at refusal we would find it difficult to defend at appeal."

Mr Leader contends that, read as a whole, what Councillor Boyce said "amounted to no more than a plea that members should ensure any reason for refusal should be reasonable in the sense of being soundly based and supported by evidence" and that the intervention was entirely proper. As Chairman Mr Leader contends that he had a duty to ensure that the committee, if minded to refuse planning permission, formulated sound and properly evidenced reasons for refusal in accordance with the Secretary of State's policy and practice on the award of costs for the unreasonable refusal of planning permission.

I agree with that submission. I have already alluded (see paragraph 41) to the various aspects of the role of Chair of such a committee. Councillor Boyce's style may be robust, but that is no basis for criticism on legal grounds unless, of course, the style and substance become so entwined that a palpable legal error occurs that, if avoided, might have led to a different decision.

I do not consider that this ground is sustainable.

Conclusion

I have considered each individual ground advanced in support of the challenge to the validity of the decision made and have rejected it. I have taken the precaution also of standing back from the individual criticisms and considered whether, adding each criticism together, I should conclude that the decision of the committee was flawed. I do not consider that conclusion to be one that can be reached.

This was undoubtedly a controversial local proposal where the arguments each way were finely balanced: the division of local opinion reflected in the arguments advanced for and against the proposal are testimony to that proposition. However, that the argument may have been finely balanced does not mean that when the arguments prevailed in favour of the grant of planning permission, the decision was wrong.

I have mentioned briefly in dealing with one particular ground of challenge the case of Oxton Farms and ors v Selby District Council and ors (see paragraph 73 above). It is of course cited frequently in the context of how officers' reports are to be interpreted. It is worth highlighting again precisely what was said. Pill LJ said this:

"It is important that those who make determinations under the planning acts are familiar with sections 70(2) and 54A of the 1990 Act and apply the test imposed by Parliament. It follows that a planning officer reporting to and advising council members who are to make a relevant decision must keep the test in mind in the information and advice he provides and in the manner in which he provides it.

Clear mindedness and clarity of expression are obviously important. However that is not to say that a report is to be construed as if it were a statute or that defects of presentation can often render a decision made following its submission to the council liable to be quashed. The overall fairness of the report, in the context of the statutory test, must be considered.

It has also to be borne in mind that there is usually further opportunity for advice and debate at the relevant council meeting and that the members themselves can be expected to acquire a working knowledge of the statutory test."

Judge LJ, as he then was, said this:

"The report by a planning officer to his committee is not and is not intended to provide a learned disquisition of relevant legal principles or to repeat each and every detail of the relevant facts to members of the committee who are responsible for the decision and who are entitled to use their local knowledge to reach it. The report is therefore not susceptible to textual analysis appropriate to the construction of a statute or the directions provided by a judge when summing a case up to the jury.

From time to time there will no doubt be cases when judicial review is granted on the basis of what is or is not contained in the planning officer's report. This reflects no more than the court's conclusion in the particular circumstances of the case before it. In my judgment an application for judicial review based on criticisms on the planning officer's report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken."

In The Queen on the application of Siraj v Kirklees Metropolitan Council, referred to at paragraph 101 above, Sullivan LJ said this and, in doing so, drew on what Judge LJ had said:

"It has been repeatedly emphasised that officers' reports such as this should not be construed as though they were enactments. They should be read as a whole and in a commonsense manner, bearing in mind the fact that they are addressed to an informed readership, in this case the respondent's planning subcommittee."

I would respectfully suggest that at least the same caution needs to be observed in relation to the oral contributions of members of the committee (including those of the Chair) whose words may have been recorded. Unlike an officer's report, the words will not have been formulated in the quiet of an officer's room with all relevant documentary material to hand. Some words will doubtless have been prepared in advance, but they will need to have been adapted to the circumstances of the debate as it proceeds and, as I have indicated above, views may change during the course of the debate. That is a perfectly understandable and desirable feature of the proceedings of such a committee. It could operate to stifle the kind of open debate that is the lifeblood of effective local decision-making if a close textual analysis of those contributions was permitted to be made too readily.

For the reasons I have given, this application must be dismissed.

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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Oadby Hilltop and Meadowcroft Conservation Area Association & Anor, R (on the application of) v Oadby and Wigston Borough Council & Anor [2011] EWHC 60 (Admin) (21 January 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/60.html Cite as: [2011] EWHC 60 (Admin)