Planning application — Radio station and mast — Planning permission refused by local planning authority — Appeal — Secretary of State advising local planning authority on publicity — Some residents and interested parties notified — Applicants and others not notified — Planning permission granted following appeal — Reference in decision letter to objections — Applicants learning of decision after time-limit for appeal expired — Whether appeal out of time — Whether certificate accompanying planning application defective — Whether any duty to inform neighbours
In July 1986
Racal Vodafone Ltd applied for planning permission to erect equipment for a
cellular radio base station with a 30m-high radio mast near Hanger Lane,
Ealing, West London. Near the proposed site were large blocks of flats and the
local planning authority wrote to many of the occupants inviting their
observations. The local planning authority refused the application for planning
permission on the grounds that the proposed radio mast would constitute an
intrusive and visually unacceptable feature and it would be seriously
detrimental to the residential amenities at Greystoke Court, a block of flats
nearby, by reason of visual intrusion and loss of garden space.
The company
appealed against that refusal and the Secretary of State for the Environment
appointed an inspector to determine the appeal by way of written
representations. In a letter of April 1987 to the local planning authority, the
Secretary of State advised that the authority should immediately notify local
residents and others who may be affected by the proposals and who may wish to
make representations or objections. Some residents and interested parties were
notified, but the applicants and many others were not. By his decision letter
of November 12 1987 the inspector, having considered the objections received
and the impact of the imposed development upon the amenities enjoyed by the
residents of Greystoke Court, the block of flats most concerned, granted
planning permission for the development.
On January 13
1988 the first applicant learnt for the first time of the planning proposal,
despite its having been advertised. On February 11 1988 he sought leave to
apply for judicial review of the planning decision. His first ground was that
the certificate accompanying the planning application under section 27 of the
Town and Country Planning Act 1971 was defective, and as a result the planning
refusal and all subsequent steps were null and void. Secondly, there had been a
failure to consult the present applicants when the planning application was
originally before the local planning authority and when the appeal was before
the Secretary of State; this failure constituted a breach of the principles of
natural justice and the planning decision was null and void. The applicants
also contended that because the certificate under section 27 was bad the
Secretary of State had no jurisdiction to entertain or determine the appeal and
therefore his determination was not a decision at all, and the six-week
time-limit in section 245 of the 1971 Act, which had expired by the time the
application to the court had been made, did not prevent an application for
judicial review outside that period.
1. The
decision which the Secretary of State for the Environment purported to make by
his decision letter could not be challenged outside the six-week period, either
on the ground that the certificate under section 27 was bad or on the ground
that the process of consultation was flawed. The case of R v Secretary
of State for the Environment, ex parte Ostler [1977] QB 122 could not be
distinguished. See p 21E. The applicant could not contend that he was not
limited by the time-limit in section 245 of the 1971 Act by arguing he was not
a ‘person aggrieved’ at the relevant time within the meaning of the section as
he did not know he had a grievance: see Griffiths v Secretary of
State for the Environment [1983] 2 AC 51. See p 21F.
2. Section 27
of the 1971 Act, which requires a certificate that the owner of the affected
land has been informed, is a protection for owners. The fact that, in this
case, the owner’s agents had been notified rather than the owner might have
entitled the court to strike down the planning permission on the application of
the owner, but it did not avail the first applicant. In any event there was no
obligation on the company to notify the first applicant either as the owner of
adjoining land or as the lessee of the owner of the land to which the
application related. See p 22C-D.
3. Although it
is the general practice of planning authorities, and referred to in Circular
71/73, to notify persons likely to be affected by development the subject of a
planning application, there is no general requirement or duty. The Act contains
no such general scheme and it would in practice be difficult to decide just who
is an affected party. See pp 22-23. If there is a requirement or duty to notify
individually affected persons, it should apply at the appeal stage as well as
the application stage: see p 24.
to in the judgment
Anisminic
Ltd v Foreign Compensation Commission [1969]
2 AC 147; [1969] 2 WLR 163; [1969] 1 All ER 208, HL
Griffiths v Secretary of State for the Environment [1983] 2 AC 51;
[1983] 2 WLR 172; [1983] 1 All ER 439; (1983) 81 LGR 369; 45 P&CR 299; [1983]
EGD 1057; 266 EG 623, [1983] 1 EGLR 168; [1983] JPL 237, HL
London
& Clydeside Estates v Aberdeen District
Council [1980] 1 WLR 182; [1979] 3 All ER 876; (1979) 39 P&CR 549;
[1980] EGD 207; 253 EG 1011, [1980] 1 EGLR 11, HL
McDaid v Clydebank District Council 1984 SLT 162; [1984] JPL 579,
Ct of Sess
Main v Swansea City Council (1985) 49 P&CR 26; [1985] JPL
558, CA
R v Great Yarmouth Borough Council, ex parte Botton Bros Arcades
Ltd (1988) 56 P&CR 99; [1988] JPL 18
R v Monmouth District Council, ex parte Jones: sub nom R
v Torfaen Borough Council, ex parte Jones [1986] JPL 686
R v Secretary of State for the Environment, ex parte Ostler
[1977] QB 122; [1976] 3 WLR 288; [1976] 3 All ER 90; (1976) 75 LGR 45; 32
P&CR 166; 238 EG 971, [1976] 1 EGLR 11; [1976] JPL 301, CA
R v Sheffield City Council, ex parte Mansfield (1978) 77 LGR
126; 37 P&CR 1; [1978] JPL 465, DC
Smith v East Elloe Rural District Council [1956] AC 736; [1956] 2
WLR 888; [1956] 1 All ER 855; (1956) 54 LGR 233; 6 P&CR 102, HL
Application
for judicial review
This was an
application for the judicial review of a decision of the Secretary of State for
the Environment, by his inspector, whereby he allowed an appeal, and granted
planning permission, against a decision of Ealing London Borough Council to
refuse planning permission for the erection of a radio base station and radio
mast.
Lindblom (instructed by Leslie Oliver & Co) appeared for the applicants.
(instructed by the Treasury Solicitor) appeared for the respondent.
(instructed by the solicitor to Racal Group Services Ltd) appeared on behalf of
Racal Vodafone Ltd.
following judgment of the court was delivered.
PILL J: On July 21 1986 Racal Vodafone Ltd (‘the company’) applied to the
Ealing London Borough Council (‘the council’) for planning permission to erect
equipment housing for a cellular radio base station with a 30 metre-high radio
mast at Greystoke Court, Hanger Lane, Ealing. Near the site of the proposed
mast were large blocks of flats, and the council wrote to many of the occupants
of the flats inviting their observations upon the proposal. They did not,
however, write to the applicant, Mr Kent, or to many of his neighbours in
Greystoke Court. It is common ground that the 18 flats whose occupants were not
invited were all close to the site of the proposed mast and include those closest
to and worst affected by the proposal.
On November 20
1986 the council refused the application for planning permission. The reasons
given were: (1) the proposed radio mast would constitute an intrusive visually
unacceptable feature, contrary to the policies of the approved Ealing Borough
Plan and (2) the proposed radio mast compound would be seriously detrimental to
the residential amenities of Greystoke Court, by reason of visual intrusion and
loss of garden space.
By notice of
appeal dated March 16 1987 the company appealed to the Secretary of State for
the Environment against that refusal. They proposed, and the council agreed, to
deal with the appeal by way of written representations. The Secretary of State
appointed an inspector to determine the appeal. By letter dated April 8 1987 to
the council, the Secretary of State stated, inter alia:
The Council
should immediately notify local residents and others (eg Parish Council
and Preservation Societies) who may be affected, including those persons or bodies
who made representations at application stage. Your Council will wish to decide
the precise form of notification; but the following points are particularly
important and we would suggest that the letter indicates . . .
The document
then goes on to suggest certain matters which should be included in the letter.
The letter was in standard form and is, I assume, regularly despatched when
appeals against local planning authority decisions are lodged with the
Secretary of State. Some residents and interested parties were notified, but
again Mr Kent and many others were not. The council submitted written
representations to the inspector opposing the grant of planning permission, as
did some of the residents who had been informed of the appeal.
In his
decision letter dated November 12 1987, the inspector stated that he had
considered the written representations made by the company, the council and
interested persons. In para 2 of his decision letter he stated:
From my
inspection of the site and its surroundings, and from the representations made,
I am of the opinion that the main issues in this case are the impact the
proposals would have upon the residential amenities of nearby dwellings and
upon the appearance of this part of London.
In para 4 near
the end he stated:
The Council
received a number of objections to the planning application mainly on the
grounds that views would be spoiled, which I shall deal with below, that TV
interference might result which is a matter adequately dealt with by other than
planning controls, and that being commercial in purpose the mast would be out
of place in a residential area. They have canvassed the merits of a number of
alternative sites for the proposal though in doing so seem to have disregarded
the limited tolerances in location which you [the company] have explained
apply.
In para 6 the
inspector stated:
So far as the
impact which the proposed development would have upon the
that although the Council think the proposed compound would be visually
unattractive, neither it nor the base cabin in the parking area would be
objectionable. I can understand how residents in flats only 13 or 14 metres
from the proposed mast can be apprehensive about the erection of such a
relatively unfamiliar feature near to their dwellings. However when I note that
the proposal is on the north side of those flats and is not directly opposite
the nearest windows, half of which have obscured glazing, I am drawn to the
conclusion that although the light lattice structure of the mast would appear
in the foreground of oblique views from windows and balconies on this side of
the block, its presence would not so spoil their outlook as to amount to a
sound and clear cut reason for refusing planning permission. The outlook from
dwellings further away would of course be affected to a lesser degree.
It is clear
from that paragraph that the inspector did consider the amenities of local
residents when coming to his decision. The inspector also considered other
factors and decided to allow the appeal and grant planning permission.
It was not
until January 13 1988 that Mr Kent knew of the planning proposal. Until then he
did not know of the decision, the appeal or even the application, although it
had been advertised. On February 11 1988 he sought leave to apply for judicial
review of the planning decision, and leave was granted on February 18 1988.
The council
have not been represented in these proceedings. I can only assume that the
failure to send the appropriate letters to the occupants of the relevant flats,
including Mr Kent, was merely a mistake or a series of mistakes on their part.
There is no good reason why the occupants of the less-affected flats should
have been informed of the proposal and their observations invited, and the
applicant and the others who support him were not notified. There is no
suggestion of bad faith, as distinct from simple error, on the part either of
the council or of the Secretary of State.
It is conceded
by Mr Laws, on behalf of the Secretary of State, that if there was a breach of
natural justice in failing to consult Mr Kent and his neighbours, they have
been substantially prejudiced by the absence of an opportunity to put their
case to the Secretary of State. Mr Lindblom, on behalf of the applicants,
submits first that the certificate, which the company purported to serve with
the planning application under section 27 of the Town and Country Planning Act
1971, was defective. As a result, the planning refusal and all subsequent steps
were null and void. Second, he submits that the failure to consult the present
applicants when the planning application was before the council, and when the
appeal was before the Secretary of State, constituted a breach of the principles
of natural justice. Even if no duty to notify and consult arose at the earlier
stage, it is submitted that it arose at the later stage. Reliance is placed on
the Secretary of State’s letter of April 8 1987, to which I have referred. Mr
Kent could legitimately expect to be consulted, because there was a general
policy of consulting those affected by planning proposals and further, or in
the alternative, because of the Secretary of State’s transmission of the
letter. Failure to consult Mr Kent constituted a breach of the principles of
natural justice, and the planning decisions are null and void.
Anticipating a
jurisdictional argument, Mr Lindblom submitted that because the certificate
under section 27 was bad, and also because the process of consultation was
flawed, the Secretary of State had no jurisdiction to entertain or determine
the appeal. His determination was not a decision at all, and the six-week
time-limit, in section 245 of the 1971 Act, did not prevent an application for
judicial review outside that period. Mr Lindblom relied on the decision of the
House of Lords in Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147, and the Scottish case of McDaid v Clydebank
District Council 1984 SLT 162, though he recognised that the Scottish
case is not binding upon me.
Mr Laws for
the Secretary of State submitted that the court had no jurisdiction to
entertain Mr Kent’s application. Assuming for this purpose that the decision
was unfair, he submitted that it was still a decision. The combined effect of
sections 242 and 245 of the 1971 Act was that an application could be brought
only within six weeks of November 12 1987, the date of the Secretary of State’s
decision by his inspector.
Mr Laws
referred to the words of Lord Radcliffe in Smith v East Elloe Rural
District Council [1956] AC 736. Dealing with similar provisions in the
context of compulsory purchase, Lord Radcliffe stated that he did not see how
it was possible to treat the relevant provisions as ‘anything less than a
complete statutory code for regulating the extent to which, and the conditions
under which, courts of law might be resorted to for the purpose of questioning
the validity of a compulsory purchase order within the protection of the Act’.
Mr Laws also
submitted that I am bound by the Court of Appeal decision in R v Secretary
of State for the Environment, ex parte Ostler [1977] QB 122, where
it was held that the effect of similar provisions under the Highways Act 1959
was to make orders immune from challenges to their validity made outside the
prescribed period. It would be absurd, Mr Laws submitted, if the same wording
produced different results in a highway context and in a planning context.
Mr Lindblom
sought to distinguish Ostler on a number of grounds. He submitted that
the purported decision of the Secretary of State was not a decision at all
following the approach of the House of Lords in Anisminic, and in
particular that of Lord Reid at p 171B. The court was entitled, Mr Lindblom
submitted, to inquire whether the decision was a nullity. The decision was, for
reasons given above, a nullity and sections 242 and 245 could not, he said,
transmute a nullity into a reality, and there could be a challenge by way of
judicial review.
I am not able
to distinguish Ostler on any of the grounds relied upon by Mr Lindblom.
I do not consider that the decision which the Secretary of State purported to
make by his decision letter can be challenged outside the six-week period,
either on the ground that the certificate under section 27 was bad or on the
ground that the process of consultation was flawed. Neither can I accept the
submission that the appellant is not limited by section 245 because he was not
a ‘person aggrieved’ at the relevant time within the meaning of the section
(see Griffiths v Secretary of State for the Environment [1983] 2
AC 51). It was submitted that Mr Kent was not a person aggrieved because he did
not know he had a grievance.
There is an
obvious public interest in certainty and finality when planning permissions which
attach to the land concerned are granted. In my judgment sections 242 and 245
of the 1971 Act do define the time-limit for challenging allegedly unfair
decisions under section 36 of the Act by way of judicial review.
I also find
support for the proposition that the time-limit cannot be circumvented by
attempting to classify a decison as a nullity in the approach of the House of
Lords to statutory requirements in London & Clydeside Estates v Aberdeen
District Council [1980] 1 WLR 182 per Lord Hailsham at p 187 and in
the decision of the Court of Appeal in Main v Swansea City Council
(1985) 49 P&CR 26 at pp 35 to 38 per Parker LJ. The present decision
of the Secretary of State was, in my judgment, valid unless successfully
challenged in accordance with sections 242 and 245.
If I am right
on the jurisdictional issue, the other points do not arise for
Section 27
Mr Lindblom
seeks to rely on the decision in Main v Swansea City Council to
establish that the section 27 certificate was not a certificate at all. He
submits that a decision taken on the basis of an application entertained
without there being a valid certificate was null and void. The certificate was
defective in that the owner of the land to which the planning application
related, Mr Phillips, was not named in it as required by section 27(1)(b),
but instead the owner’s agent, Mr Green, was named. No complaint is made in
this case by the owner of the land, Mr Phillips.
The section is
intended for the protection and information of owners: Main v Swansea
City Council, per Parker LJ at pp 33 and 34. I accept the submissions of Mr
Laws and Mr Hamey, who appeared for the company, that it is not open to the
applicant, Mr Kent, to rely on the alleged defect in the section 27 certificate
in the present proceedings. The defect may have been one which would have
entitled the court to strike down the planning permission on the application of
an owner who had not been notified. But the fact that the owner’s agent is
named, and not the owner himself, does not avail the present applicant and
neither do the alleged defects in the certificate. In any event I would
exercise my discretion against granting judicial review to the applicant on
that ground. Further, section 27 did not, in my judgment, impose an obligation
on the company to notify the present applicant, Mr Kent, of the planning
application either as the owner of adjoining land or as the lessee of the owner
of the land to which the application relates (which, in my judgment, means the
land on which development is going to occur).
Consultation
There is no
doubt that a practice has grown up by which persons likely to be affected by
developments on land are notified of planning applications for that development.
The object of the practice is to give those affected the opportunity to make
representations to the decision-maker. That practice is demonstrated in this
case by the letter sent to residents by the council and at the appeal stage by
the letter sent by the Secretary of State to the council and acted upon with
respect to some residents by the council. In the context of written
representations, the practice is referred to in para 21 of the Department of
the Environment Circular 71/73.
The applicant
submits that the failure to notify him and his neighbours at either stage
amounts to a denial of a fair hearing and entitles him to have the planning
permission quashed. The letter created a legitimate expectation in a class of
persons, it was submitted. Just as there is a public interest in quick
finality, so there is a public interest in persons affected having the
opportunity to object, submitted Mr Lindblom.
The point in
the present case cannot be decided on the basis of a ‘unique combination of
circumstances’, the expression used by Otton J when granting judicial review in
R v Yarmouth Borough Council, ex parte Botton Brothers Arcades
Ltd [1988] JPL 18. If relief is available to the present applicant on this
ground, it will be available to a very large category of persons affected by
planning decisions if they are not notified and are not aware of planning
applications affecting them. It may be that the Secretary of State’s letter
gives the persons affected a stronger case for notification at the appeal stage
than at the application stage, but I find it difficult to distinguish between
the two stages on that ground. If a person affected has a right to be consulted
individually, he should have that right upon the application as well as upon
the appeal. There is of course no right of appeal to the Secretary of State
upon a grant of planning permission.
Mr Lindblom
relies on ex parte Botton and the decision of Woolf J (as he then was)
in R v Torfaen Borough Council, ex parte Jones [1986] JPL
686 in support of the proposition that planning permission will be quashed
where objectors have not had fair treatment. In ex parte Jones the
objector to a planning application made to the local planning authority met the
chairman of the planning committee and made it clear that he and other
objectors were anxious to make further representation. The council adjourned at
the request of the objector, Mr Jones. Woolf J held that, having adjourned, the
only way that the respondent could have complied with the requirement of
fairness was to enable the objectors to make such representation as they wanted
with regard to the amended plan.
In ex parte
Botton a council which reversed its previously declared policy as to
amusement arcades on the sea-front without enabling objectors to state their
objections fully was held not to have acted fairly. The planning permission was
quashed.
Mr Lindblom
submits that if it is unfair to fail to give known objectors an opportunity to
state their case fully, it is even more unfair to fail altogether to notify
potential objectors to a planning application.
Mr Laws
referred to the requirements as to notices and publicity contained in the 1971
Act. It was not for the common law, he submitted, to impose upon the statutory
code an obligation to find objectors. The procedures for consultation were
self-imposed machinery and did not create a duty to notify or to find
objectors. If the applicant, Mr Kent, had objected to the proposed development,
fairness would have required the decision-maker to take his objection into
account. That was very different from imposing upon the Secretary of State a
general duty of ensuring that objectors are found out.
Mr Laws took
the further point that if at the appeal stage there was a duty to set in train
a system for finding objectors, there was no duty to guarantee its
implementation. The failure by the council to take the action they had been
requested by the Secretary of State to take did not involve the Secretary of
State in the breach of the requirement to act fairly.
The issue
appears, to me, to be whether there is a general requirement or duty, as part
of the requirement or duty to act fairly, to notify individually those likely
to be substantially affected by planning proposals. My conclusion is that there
is no such requirement. Had Parliament intended such a general requirement, I
would have expected to find it specified in the statute along with other
requirements which have been included. I bear in mind the importance of
finality and the difficult questions which would arise as to whether a
particular interest was affected by a particular proposal to the extent that
individual notification ought to have been given. A general, though informal,
practice of notification has not created a duty to notify, as Lord Widgery CJ
put it in a different context in R v Sheffield City Council, ex
parte Mansfield (1978) 37 P&CR 1 at p 7:
I have no
doubt that in a well organised community this kind of activity does take place,
but it is quite a different matter to come here and ask us to say, as a matter
of law, that it must take place.
I am conscious
that it may appear unfair to place a potential objector who has not been
informed at all in a position worse than that of the objector who has been
informed but is treated badly thereafter. This, however, would not be the only
area of law where, to state the distinction made by Mr Laws, the duty to act in
a certain way arises only when a relationship is created.
If, contrary
to my conclusion, there is a requirement or duty to notify individually, it
should apply, in my judgment, at the appeal stage as well as the application
stage, and the Secretary of State should not escape the
asked the council to make appropriate notification. Once it is accepted that
fair treatment by the decision-maker includes notification of potential
objectors, treatment can only be fair if potential objectors are in fact
notified or at least if a scheme for notifying them is implemented. Absence of
notification involves unfairness even if the failure to notify is not the fault
of the relevant decision-maker. I do not see a half-way house on the question
of individual notification of those adversely affected. If the requirement of
notification exists, it should exist at both stages and should be implemented
in a comprehensive manner. The need for such a scheme, if the requirement
exists at all, adds weight, in my judgment, to the view that in the absence of
a general scheme for individual notification in the statute, Parliament did not
intend that a legal requirement should exist.
The
application is refused.
Application
refused with costs.
