Case No: CO/846/2017

Neutral Citation Number: [2017] EWHC 3321 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
PLANNING COURT

The Civil Justice Centre, Manchester
Date: 10/01/2018

Before :

His Honour Judge Bird

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Between :

	THE QUEEN (on the application of Ward)
	Claimant	
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(1)	BOLTON METROPOLITAN BOROUGH COUNCIL
And others	

Defendants	

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Mr Gill (instructed by Pinsent Masons) for the Claimant
Mr Cannock (instructed by Tameside Borough Council Solicitor) for the Defendant

Hearing date: 13 October 2017

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JUDGMENT
His Honour Judge Bird: 

1.	This is an oral renewal of an application to proceed with judicial review of a decision made by Tameside Metropolitan Borough Council to grant full planning permission in respect of a development at Hanover Street in Mossley on 5 January 2017. I refused permission to proceed on paper on 30 June 2017. Only 2 of the initial 6 grounds are pursued at this hearing.

2.	The development site is a sharp slope. The Claimant, Mr Ward, lives at the base of the slope. He is concerned, amongst other things, about the stability of the development land.

3.	The planning history of the site is as follows:

a.	In 2007 soil and groundwater data were collected at the development site. The data were used to inform how slope stability might best be achieved. The recommendations were considered by the Greater Manchester Geological Unit (“GMGU”). In their letter of 12 November 2007, GMGU note that the data and the recommendations “[remove] the uncertainty of whether this development is achievable in principle”. GMGU recommend that “the final design of superficial slope stability measures be submitted by the applicant in accordance with an appropriately worded condition precedent”.
b.	Outline planning permission for residential development with all matters reserved was granted on 8 April 2008 and renewed on 8 April 2011. Each permission was subject to a condition regarding the stability of the slope. 
c.	In March 2011, H&H Building Solutions Limited (“HHBS”) (acting for the developer) prepared a document entitled “additional information for planning permission” in answer to questions posed in a letter dated 8 March 2006 from GMGU. Details of the existing and proposed ground levels; the slope engineering rock fall proposals; foundation designs; ground and surface water management scheme and drainage measures were set out.
d.	On 21 August 2011, an application was made for consent in respect of  reserved matters for the erection of 6 houses with approval of details relating to access, appearance, landscaping, layout and scale. The scheme proposals also incorporated associated works and measures required for the discharge of certain conditions attaching to the outline permission relating to foundation techniques, rock fall protection systems and slope stability. The application was refused on 5 March 2014. The refusal was appealed and the appeal heard by the Inspector (Mr Garnham). His decision, dismissing the appeal, was published on 26 February 2015. 
e.	The 2011 application was supported by a planning statement prepared by Graham Hitchen Associates which contains much of the detail set out above.
f.	In November 2011 Tameside engaged consulting engineers to advise on the 2011 application. 
g.	The February 2015 appeal decision raises a number of concerns:
i.	The sections submitted to the Inspector as part of the geotechnical information appeared to be unreliable and different from the submitted elevations (see paragraphs 10 and 11 of the decision)
ii.	The Inspector visited the site and formed the view that the slope was steeper and higher than shown on the elevation drawings. He formed the view that houses within the proposed development would “loom” over nearby houses. He was not satisfied that there was adequate information about the appearance and scale of the rear of the houses (see paragraphs 12 to 14)
h.	On 28 September 2015, an application was made for full planning permission at the development site. By then, the 2011 permission had lapsed. The officer’s report recommended that the application be approved. Under the heading “response from consultees” it noted that GMGU had previously confirmed that development was achievable in principle and had recommended that the final design of the slope stability measures be submitted in accordance with an appropriately worded condition (see sub-paragraph (a) above). Dealing with slope stability, the officer notes that following the refusal of the reserved matters application “additional detailed geotechnical further information was submitted”. Reference is then made to the content and recommendations of the HHBS report. The officer was satisfied that “the submitted details are acceptable at this stage coupled with the additional conditions…however it is accepted by both the applicant and structural engineers that prior to carrying out any development further [assessment] of the slope is required to ensure that the development is properly and fully engineered and designed. Due to the costs involved it would be unreasonable to expect this to be carried out before the granting of planning consent so it is therefore considered appropriate that further detailed conditions to ensure this are attached to any approval given”.
i.	In October 2015 an addendum to the planning statement was submitted to address points raised by the Inspector in 2015. The addendum noted that “concerns regarding lack of detail have now been addressed” and set out a revision to the floor and roof levels of the proposed houses. It ends with the words: “the production of scaled elevations and sections will address the Inspector’s comments regarding the need for conditions to be applied…”
j.	Permission was granted, with 25 conditions attached including those contemplated by the officer relating to engineering and design of the development, details of piled foundations, the design, implementation and management of the rock fall protection system, the design and maintenance of the slope stability measures.

4.	The Claimant seeks permission to proceed on 2 grounds, summarised in his skeleton argument as follows:

a.	Geotechnical issues: failure to secure sufficient information to satisfactorily establish that permission could be implemented whilst achieving sufficient cliff stability. It is accepted that this ground requires the Claimant to show that Tameside’s planning judgment was irrational.
b.	The Defendant determined to grant planning permission in part upon a dated consultation response (from GMGU) to a different application which was not available to the public inspect or comment upon. It is said that the response was an irrelevant consideration. 

5.	In the course of oral argument Mr Gill’s main point on the first ground was that Tameside had rightly, in March 2014, refused to grant consent in respect of reserved matters, but had acted irrationally in granting full permission in 2017. The main plank of the argument is that Tameside was wrong to conclude (as set out in the officer’s report) that, between 2014 and 2017 it had received additional and detailed geotechnical information. Such information should have been obtained and the failure to do so raises an argument sufficient to warrant the grant of permission to proceed with judicial review. Mr Gill points out that the only response to the additional geotechnical information came from Mr Hall, Tameside’s environmental services manager, who simply commented that the conditions suggested by the officer “seemed fine”.  Mr Gill submits that Tameside needed to be persuaded of the “developability” of the site. 

6.	On the second ground Mr Gill submits that the stability of the development land is of central importance. He submits that Tameside have relied on GMGU’s response to a previous application, and so taken into account an irrelevant consideration. He submits they have failed to make that response available to the public in general, and the Claimant in particular.

7.	Mr Cannock, who appears for Tameside, submits that no arguable point has been raised and that I ought to refuse permission to proceed.

8.	I remind myself that permission will be granted only where the court is satisfied that the papers disclose that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence (R. v Legal Aid Board Ex p. Hughes (1992) 5 Admin. L. Rep. 623; R. v Secretary of State for the Home Department Ex p. Rukshanda Begum and Angur Begum [1990] C.O.D. 107. In essence, the court will need to be satisfied that there is an arguable ground of review which has a realistic prospect of success (see volume 1 of the White Book paragraph 54.4.2).
9.	The hurdle that the Claimant must overcome to secure permission in respect of the first ground is a high one. Mr Gill’s case is that the Defendant acted irrationally in exercising its planning judgment. 

10.	The Defendant was well aware that the development site had a long planning history and that its layout and position were such that development was not a straightforward matter. The Defendant was aware that the principle of development had been decided as long ago as 8 April 2008 on the basis of firm evidence, namely the 2007 investigations and the views (amongst others) of the GMGU. The permission includes full and detailed conditions precedent which address the difficulties posed by the nature of the development site as recommended by GMGU in November 2007. The Claimant makes no complaints about the conditions. In my judgment ground 1 has no realistic (or indeed any) prospect of success and is not arguable. Fundamentally, the complaint made by the Claimant is fully addressed by the imposition of conditions. I can see nothing in the March 2014 refusal (subsequently upheld by the 2015 appeal) that renders the January 2017 decision arguably irrational or which shows an unexplained reversal of position by the Defendant. The October 2015 addendum planning statement appears to address the Inspector’s concerns.  

11.	In addition to the points set out above, on the second ground Mr Gill complains that the officer’s report refers to “additional detailed geotechnical information” and fails to explain how the information was considered. He notes that the 12 November 2007 response was not on the planning file. It is accepted that the response was provided to the Claimant, but only in answer to a pre-action protocol letter after the January 2007 decision had been made. I accept that the GMGU letter is an important document in the planning history of the development site. The letter was referred to by the officer in his report on the 28 September 2015 application. The Claimant says that he has had not opportunity to address the content of the letter and that that state of affairs is fundamentally unfair. 

12.	Turning to the second ground, Mr Gill’s real argument is in 2 parts. 

13.	As to the first it seems to me to be very difficult to argue that the GMGU report sets out irrelevant considerations. As Mr Cannock points out, at its lowest, the report expresses a view on the feasibility of a more or less identical development on the same site based on the most recent site investigations. Weight is a matter for the Defendant. The mere age of the report does not in my judgment I the context of this case, render it immaterial. The report deals with geological features and soil types. Those features are (and there was no evidence to the contrary), relatively fixed. The position would be different if the report dealt with matters which had changed over the last 10 years. That is not the case here. The composition of the soil, the lie of the land and the characteristics of the substrates must be the same as they were 10 years ago.

14.	As to the second part, I note at the outset that the report was not a response to the 2015 application and it is accepted that there was no statutory requirement for it to be made available for inspection on the planning file. It was clear from the officer’s report that it was being relied upon and the gist of it was set out, namely that development was in principle possible and that conditions should be imposed to address the issue of slope stability. Those matters have been recognised, as Mr Cannock points out, since the grant of the 2008 outline permission.

15.	Mr Gill referred in passing (see paragraph 5.2.13 of his skeleton) to R (oao Joicey) v Northumberland CC [2014] EWHC 3657 (Admin). In that case, summarising his conclusion, Cranston J said this: “This judicial review raises an issue about the consequences when information which by law is to be accessible to members of the public is not available in a timely fashion to enable them to participate effectively in democratic decision-making. I decide that a claimant in this position is entitled to have the decision quashed unless the decision-maker can demonstrate that it would inevitably have come to the same conclusion even if the information had been available”. The GMGU letter did not contain information which “by law” was to be accessible to members of the public and so there is in my judgment no argument that the failure to make it available has deprived members of the public of the right to participate in the planning process. 

16.	 For all of the reasons set out I have come to the view that permission to proceed should be refused.

17.	The parties made brief submission at the hearing on the question of costs. I am satisfied that Tameside should have their costs of drafting the Defence and Acknowledgment of Service and of taking advice. The circumstances of the case do not justify an award of costs in respect of the oral submissions. I have been provided with a schedule of costs in respect of which no point is taken. The Claimant shall pay the Defendant’s costs which I summarily assess in the sum of £2,962.50 plus VAT.