Town and Country Planning Act 1971 — Challenge to decision of local authority giving themselves planning permission for development — Deemed planning permission by resolutions passed by local authority, which was also the planning authority, under the Town and Country Planning General Regulations 1976, for development of land vested in the authority, such development to be carried out by persons other than the authority — Proposed superstore development on Parkhouse site in Carlisle area, a site owned by the authority — Present applicants, a co-operative society, who had made a planning application for development of another site, sought to upset the authority’s deemed permission — Various developers were interested in retail superstore development in the area — Present applicants’ main object was to obtain a multiple inquiry at which all extant applications for planning permission would be considered and at which the local authority would not hold the ‘trump card’ of a permission already in their hands — The Secretary of State for the Environment was the second respondent to the present application because his refusal to call in the local authority’s application for permission was alleged to have been unreasonable and perverse — The local authority’s resolutions and conduct which led to their obtaining deemed planning permission were attacked by the applicant co-operative society on four grounds — The grounds alleged were failure to have regard to an application for a superstore on a more suitable site; wrongly having regard to an irrelevant matter, namely, the financial gain to the local authority of the siting of the development; unfairly persuading applicants to defer applications for superstore development without disclosing the authority’s own proposals for development on a site owned by them; and failure to comply with a number of statutory procedures — The judge rejected all the alleged grounds for complaint and, in regard to the last, held that the provisions in question were directory, not mandatory — As regards the complaint against the second respondent, the Secretary of State, the judge held that his decision not to call in the authority’s case was not unreasonable or perverse — Applications dismissed
These were
applications for judicial review by which the applicants, Cumbrian Co-operative
Society Ltd, sought to challenge the deemed planning permission which empowered
Carlisle City Council, the first respondents, to authorise the development of a
retail superstore at the Parkhouse site. The applicants also sought to
establish that the second respondent, the Secretary of State for the
Environment, had acted unreasonably in refusing to call in the city council’s
case.
Malcolm Spence
QC and N Nardecchia (instructed by Pothecary & Barratt, agents for Leak,
Almond & Parkinson, of Manchester) appeared on behalf of the applicants,
Cumbrian Co-operative Society Ltd; Jules Sher QC and Arthur Ward (instructed by
the City Solicitor, Carlisle) represented the first respondents, Carlisle City
Council; John Laws (instructed by the Treasury Solicitor) represented the
second respondent, the Secretary of State.
Giving
judgment, MACPHERSON J said: These applications fail in the following
circumstances. The applicants, Cumbrian Co-operative Society Ltd, seek to upset
the decision of the Carlisle City Council made by resolution on December 14
1984 by which the council, by its control subcommittee, authorised the carrying
out of a superstore development at what is called the Parkhouse site.
The council
acted pursuant to regulations4 and 5 of the Town and Country Planning General
Regulations 1976 (SI 1976 no 1419), which provide the machinery whereby deemed
permission for the development of land vested in a local authority can be
obtained through that local authority itself. Regulation 5 applies
particularly, since this council does not itself propose to carry out the
development, but much of regulation 4 is also applicable by incorporation of
its relevant provisions through regulation 5.
Much money is
at stake in this case, since such development is very big business and if
Carlisle retains the Parkhouse planning permission it will be a most valuable
asset.
The applicants
made their own application to develop another site known as the Eden site, or
simply Eden. Their application was made on August 21 1984. In these proceedings
a watching brief was held for another applicant for a similar development
called the Lonsdale application. In the wings stand Asda, one of the big names
of this business, who are interested in the Parkhouse site. Recently the
applicants filed another application in order to match the council’s proposed
development in size. Their new one and the council’s are for 65,000 sq ft of
development. The applicants’ original application was for 43,000 sq ft.
The
applicants’ objective is, in reality, to achieve a three-or-more-handed inquiry
before an inspector before which all the extant applications would be heard and
at which the council would not hold the trump card of planning permission which
is at present in their hands. The second respondent, the Secretary of State for
the Environment, has been asked to call in the council’s case but he has
declined to do so. The applicants say that he is wholly unreasonable in refusing
to do so.
There are
those who believe that it is odd that the law provides for deemed permission to
be obtained in the manner set out in the relevant legislation, since it could
be thought to be difficult to be impartial in such an exercise. But such
procedure is the only route available to local authorities, who have thus
effectively to give themselves permission if they wish to develop, although
technically they act as agents for the Secretary of State and proceed not by
way of application to themselves but by way of successive resolutions as set
out in the 1976 Regulations.
It is
unnecessary to set out the entire chronology of these interlocking applications
(Parkhouse and Eden) in this judgment. They appear among the 404 pages of
documents which we have digested over the preceding three days. But some dates
are important and I will deal with them specifically as I deal with each ground
on which relief is sought in this case.
I should say,
before embarking upon those grounds, that I have looked throughout in this case
for any general or particular signs of unfairness or unfair advantage gained by
the council, and for any signs that the council have been devious or lacking in
frankness in what they have done. I can find no such signs, and while I understand
the applicants’ unhappiness I do not believe that they have suffered injustice.
The public may also be well served by the result of this case, since it is
possible that they will be spared the time and expense of a
shopping centre — assuming, as I do, that on balance it is a desirable and
wanted amenity. No doubt the competition for the council’s site by developers
may produce the best result eventually for the shoppers.
I turn then,
without any rehearsal of the facts, to the grounds. I do this at once, since
there is obvious need for judgment in this case to be given without delay and
because recitation of the facts themselves is unnecessary in the light of the
full evidence and documentation.
Ground 1 reads
as follows:
That in
passing the said resolutions the First Respondents failed to have regard to a
relevant and material planning consideration, namely, that an application had
been made for a retail superstore on land between Kingstown Road and California
Lane, Carlisle which was a more suitable site for retail superstore
development.
Mr Spence says
that the council failed to report properly the existence and nature of the
applicants’ case and that because of this the subcommittee failed to have
regard or any proper regard to a most material planning consideration and acted
in a manner that was unreasonable in the ‘Wednesbury’ sense. Mr Spence relies
upon the case of Rhodes v Minister of Housing and Local Government
[1963] 1 All ER 300 and (in particular) the case of Ynystawe v Secretary
of State for Wales [1981] JPL 874. Mr Spence says that Mr Colin Cuthbert
[Director of Planning, Carlisle City Council] in his enthusiasm for his own
cause gave the impression to the adjudicating committee that the applicants’
case should effectively be put on one side and that he should have put it into
their mind so that the members could consider whether the Eden site had fewer
or more advantages or disadvantages.
It is
perfectly true that (as is said in the Ynystawe case) there are
developments which are bound to have some adverse effects where a, or the,
major argument for the promoters is that the need for the development proposed
outweighed its disadvantages. In such a case (said Glidewell J in Ynystawe),
‘. . . it must have been a material consideration whether there was an
alternative site which had more or less of those disadvantages’.
I am bound to
say that I am not persuaded that it was Mr Cuthbert’s duty to do more than he
did in this particular case and in this context. As Mr Sher says, these
authorities primarily deal with cases where there is some particular and
usually serious environmental disadvantage; for example, the airport in Rhodes,
the gipsy caravan site in Ynystawe and the soft sand-pit in R v Royal
County of Berkshire, ex parte Mangnall [1985] JPL 258.
Of course a
superstore has environmental disadvantages in one sense but not of the kind
referred to in the reported cases on this topic, which seem to me to be nearer
to the housing cases (see Paull J’s judgment in Rhodes) than to the
offensive airport or gipsy camp type of case and less harmful, environmentally,
than any of the activities referred to specifically in the reported cases.
Furthermore, nobody has ever said in terms — even here this week — that the
Parkhouse site loaded with a superstore has specially offensive features which
the Eden site similarly loaded has not, or vice-versa.
Further again,
it seems to me that, while it is true that Mr Cuthbert told the subcommittee
that because of the applicants’ appeal he recommended no further action in
respect of the Eden site, he certainly did not eliminate it from all
consideration, since he listed it in terms as one of the ‘individual proposals’
for assessment, and could hardly be expected to do more than he did at the
meeting when the applicants had themselves taken the case, at least for the
present, away from the committee and the council and to the minister by way of
appeal. As I said in argument, that may well have been a tactical error by the
applicants.
Yet further
again, it must be remembered that each member of the committee had seen the
report on the Eden site and knew its location, its proposed size and broadly
also its potentially offensive features. So that unless they were puppets the
members could perfectly well themselves have focused upon any contrast which
was favourable environmentally or indeed in any other relevant way to the Eden
rather than the Parkhouse site, or vice-versa.
I am far from
convinced that Mr Cuthbert can be criticised for his report as set out or can
possibly be said to have acted with such an uneven hand that he (or the
committee who, after all, made the decision) can be said to have acted
improperly or contrary to the requirements of section 29 of the Act, or so
unreasonably as to be subject to the strong remedy of judicial review.
Mr Spence’s
first and, as he put it, his main submission in my judgment fails.
Ground 2 reads
as follows:
That in
passing the said resolutions the First Respondents had regard to an irrelevant
and immaterial planning consideration, namely, that the development of land at
Parkhouse by the erection of a retail superstore would result in substantial
financial gain to the First Respondents.
Mr Spence left
this ground to the last and his argument in fact considerably expanded it. As
it is set out I do not see that it says more than that the council must not
allow themselves to be prevented from making a proper planning judgment by the
knowledge (which must of course be present) that the council would make a lot
of money out of its site if it obtained permission to develop.
Mr Spence
rightly accepted that of course the profit available would be in the members’
minds, as it must be in every single deemed permission case. But he said that
given these circumstances the committee must act scrupulously fairly and in
particular should not have put on one side the applicants’ site and
application, since to do so meant that they could not exercise their discretion
properly. In the light of the profit background Mr Spence said that in all the
circumstances this committee did not act fairly.
Both Mr Spence
and Mr Sher referred to a number of cases in this part of the argument and I
have myself considered R v Sevenoaks District Council, ex parte W J
Terry [1984] JPL 420 (Glidewell J’s case), Metropolitan Properties Co
(FGC) Ltd v Lannon [1969] 1 QB 577, R v St Edmundsbury
Borough Council (Court of Appeal 2 4 85, no 881) and R v Amber
Valley District Council, ex parte Jackson [1985] 1 WLR 298 and, finally,
the comprehensive case of Steeples v Derbyshire County Council
[1985] 1 WLR 256. These cases recur and I shall refer to some of them again.
In the result,
whichever way this case should be looked at, I am wholly unconvinced that there
is here any evidence that the subcommittee wrongly fettered itself or that
there is any real likelihood that the council did not exercise its discretion
properly because of the profit which was likely to be collectively theirs as a
result of the deemed permission. It seems to me, therefore, wholly unnecessary
to debate in detail the differing approaches of the judges on this topic.
Ground 2 is
therefore, in my judgment, without foundation. Certainly there is no evidence
pointing to unfair bias or unfairness which I can discern, and in those
circumstances I would be slow to impugn the committee in the way which it is
suggested that I should upon this ground.
Ground 3 reads
as follows:
That the
First Respondents acted unreasonably and unfairly in that they resolved to
authorise development of the land at Parkhouse by the erection of a retail
superstore with unreasonable haste and without allowing or taking account of
public consultation replies on the relevant policy (Policy S2) in the Draft
Carlisle Urban Area Local Plan.
Mr Spence
referred me in this context to sections 11 to 13 of the 1971 Act and pointed
out to me the provisions relating to consultation in connection with the Local
Urban Area Plan which, in its draft form, figures in this case. Mr Spence
accepts — and this is a matter confirmed by authority, namely R v City
of London Corporation, ex parte Allan (1980) 79 LGR 223, a decision of
Woolf J — that planning decisions can of course be made before the local plan
processes are over and complete (see in particular p 227 of that judgment). But
he says that since this is a case under the 1976 Regulations, the council has
effectively defeated the local plan process in connection with the single
superstore proposal by granting itself permission before receiving the local
plan consultation replies, which were not due until January 14 1985. S2 (p 196)
is, says Mr Spence, a site specific policy and therefore it was pre-emptive and
unfair and wholly unreasonable and over-hasty to do what the council did before
the replies were even due.
In support of
this submission he also points out that four of the consultation replies under
the express provisions of the regulations were not yet in and he says that the
whole picture is one of indecent haste and unfairness. In this context Mr
Spence returns to the case of Steeples and rightly says that in a case
involving money and its own development a council must be seen to be acting
with scrupulous fairness. This is undoubtedly so, but it does not seem to me
that the longer-term considerations involving the whole of the local plan are
directly relevant to the shorter-term questions involved in these applications.
Mr Sher made this point and furthermore pointed out that in practice the
present application could have been made in the name of the possible developer
Asda, in which case the point would have little if any validity.
I understand
that latter argument, but it seems to me that I have to look at the case as it
is. Even upon that basis I do not accept that the speed of the acquisition of
the deemed permission or the failure to wait until January 14 1985 can possibly
support a case that this council acted with unfair haste which no reasonable
local authority would adopt — those being the words formulated by Mr Spence as
the right test to apply.
As Mr Sher
says, the council did not act outside the law in making its decision and in all
the circumstances I do not detect unreasonableness in what they did. The whole
question of a superstore development was not a new one (see Mr Cuthbert’s
affidavit, p 101) and it had been under discussion since October 1983. The
local plan was extensive and covered many aspects of local development, as Mr
Laws indicated in his short argument.
In practical
terms, moreover, there is no evidence that a delay of a month would have
produced or indeed did produce any representations in respect of the proposal
S2 which would have affected this decision. This may be a comfort rather than a
reason for my conclusion upon this ground, and it is relevant perhaps only to
that extent.
In all the
circumstances, however, I see no ground here upon which to impugn the decision.
Ground 4 reads
as follows:
That the First
Respondents acted unfairly, alternatively unreasonably, (i) by requesting the
applicants to agree to a deferment of the determination of the applicants’ own
application for retail superstore development without disclosing that the First
Respondents themselves were proposing on November 6 1984 to seek permission for
such a development on a site within their own ownership.
(ii) by requesting the applicants to supply
additional information under article 5 of the Town and Country Planning General
Development Order 1977 (SI 1977 No 289) when the First Respondents had no
intention of giving any genuine consideration to the same.
The basis of
this ground is that by his letter of September 17 1984 Mr Cuthbert was seeking
information which he must already have known (from his own inquiry in
connection with the Parkhouse application) and thus the request for information
was unnecessary and made only in order to gain time. Furthermore, it is said
that his report on Eden was made before the answers to his own request were
given and that he was wrong to recommend the refusal of Eden before the answers
came in. Mr Spence argues that it was wrong to request deferment of Eden while
proceeding apace with Parkhouse and says that it was unreasonable (again in the
‘Wednesbury’ sense) to delay Eden and accelerate Parkhouse.
Mr Sher points
straight to para 18 of Mr Cuthbert’s affidavit, p 104. And also he points out
that once the meeting was fixed for November 2 1984, it can hardly be said to
be a fair criticism of Mr Cuthbert that he wrote and circulated a report upon
Eden (p 309) a few days before that meeting was to take place.
Both sides
floated before me evidence or ‘counsel’s evidence’ about the usual size of
superstores, but I feel bound to ignore that aspect of the argument, since it
is most imprecise and unsatisfactory in any event.
In the result
I cannot and do not find any lack of frankness or any deviousness in this part
of the case. Mr Cuthbert says on oath that his knowledge was as he says it was
and that when he asked for the information he was not acting with a closed mind
or with the intention of frustrating the Eden application at all. Later on it
was accepted that the ‘impact’ information need not be given. In my judgment,
even if I doubted Mr Cuthbert’s evidence (and I see no material which makes me
do so) I do not find the applicants’ case under Ground 4 as to unfairness or
unreasonableness to be substantiated.
I come then to
Ground 5. I propose to deal first with (i) and (ii) which read as follows:
That in
passing the said resolutions the First Respondents acted unlawfully by failing
to comply with the necessary statutory procedures in that: (i) They failed to
comply with regulation 4(4) of the Town and Country Planning General
Regulations 1976 and the Town and Country Planning (Development Plans)
(England) Direction 1981 by not consulting the Secretary of State for the
Environment.
(ii) They failed to comply with the aforesaid
regulations and direction by not enclosing the consultation reply under
regulation 10 of the said General Regulations when consulting the Secretary of
State for the Environment.
Ground (i) is
inaccurately worded. What is in fact complained of is a breach of regulation
4(4) which requires compliance with all development orders and directions and
in particular the 1981 direction (p 40495 of Vol 4 of the Encyclopedia of
Planning) para 4 of which, in certain circumstances, requires that a local
authority shall send to the Secretary of State the consultation replies or
representations received from an authority consulted in accordance with the
requirements of regulation 10 of the 1976 regulations. Furthermore, regulation
11 of the General Development Order 1977 must be complied with and, says Mr
Spence, ground 5(i) and (ii) fall or stand together. Furthermore, since the
policy of the local plan is not normally to permit shopping superstores, the
council’s proposal was in material conflict with the policy and therefore the
proposal had to go to the Secretary of State for him to consider the exceptions
set out in subparas (a) to (e) of S2.
It is not
enough, says Mr Spence, for the council to say that they and the county council
have considered those matters; and this failure by the council to follow the
rules is fundamental and fatal to the life of the planning permission, since
the regulations are mandatory, and without compliance the permission is ultra
vires and void.
Mr Sher
accepts, reluctantly but realistically, that his clients’ application was a
departure application (see para 1(2) of the 1981 direction for the importance
of this concession, which effectively brings the 1981 direction into operation
in this case). He has to do this both, as it seems to me, on the facts and
because the council chose to do so when they advertised the applications as
such a departure.
Mr Sher argues
first of all that it is not, however, a material departure (see para 4(a)) and
that in any event his clients are the judges of that materiality. I see the
force of this argument, but am more inclined to the view that it is for me to
say whether it has materiality. If it is in conflict, then it is not
necessarily in material conflict with the plan, but it does seem to me that Mr
Spence is right to this extent in his argument and that the departure was
material upon all the facts and in all the circumstances.
But given that
this is correct, I am convinced that in an application of this kind the
relevant provisions are directory and not mandatory. Many cases debate this
difference and Mr Spence relies strongly upon Steeples and R v London
Borough of Lambeth, ex parte Sharpe (Court of Appeal 17 12 84, no 45) and
he cited Cullimore v Lyme Regis Corporation [1962] 1 QB 718, and
the St Edmundsbury Borough Council case; and in particular he stressed
Webster J’s judgment in Steeples at p 281 where the judge said:
. . . if
Parliament lays down conditions which are to be fulfilled before a power may be
exercised, it is incumbent upon those exercising the power to ensure that those
conditions have been fulfilled, not merely so as to avoid the risk of a
successful challenge to the exercise of that power and all the time-consuming
and costly consequences that may follow, but simply because the law requires
those conditions to be fulfilled and because it is essential that anybody
exercising a power which affects the interest of the public should scrupulously
comply with the conditions which Parliament imposes upon the exercise of such a
power.
I bear in mind
also Croom-Johnson LJ’s decision in the Lambeth case, which I do not
need to read out now.
This principle
is of course accepted by Mr Sher in the context of the two cases in which it is
set out. But he points out both in this context and in connection with grounds
5(iii) and (iv) to the different nature of the present case. He refers to the
decisions in the case of Co-operative Retail Services v Taff-Ely
Borough Council (1979) 39 P & CR 223, and to Stocker J’s judgment in
the St Edmundsbury case. It is true that the statements in Taff-Ely
may be properly described as obiter dicta, but they are persuasive none
the less.
I am unable to
accept Mr Spence’s argument that compliance in the circumstances of this case
with regulation 4(4) was in the nature of a condition precedent or mandatory so
that this permission is no permission because of the council’s failure to
comply. It seems to me plain that in the context of this case the relevant
requirements are directory. It is true that regulation 4(4) is written in terms
of the tense ‘shall’, but the effective steps towards obtaining deemed
permission are by way of resolution and not application. In my judgment the
failure to consult or to send on the consultation replies is not a step directly
leading to the resolution in the sense that the giving of notice of an
application in a planning matter or, for example, in licensing cases can be so
described.
In so far as
there have been breaches proved as set out in ground 5(i) and (ii) these are
not, in my judgment, fatal to the application and I would in any event exercise
my discretion in favour of the council in those respects. I do not find that
grounds 5(i) and (ii) show such unlawfulness as to assist the applicants in
their claims before me.
Grounds 5(iii)
and (iv) read as follows:
(iii) They failed to comply with the aforesaid
Regulations and Article 11 of the Town and Country Planning General Development
Order 1977 in that they passed a resolution on December 14 1984 without
considering the Consultation Reply of the Secretary of State for the
Environment and Transport which related to highways.
(iv) They failed to comply with the aforesaid
Regulations and Directions in that they passed the resolution on December 14
1984 before the period of 21 days for making objections to the proposed
development as advertised in a local newspaper had expired.
It will be no
surprise, in view of my conclusions as to (i) and (ii), that I find the
respondents’ arguments under those heads also to be persuasive.
These grounds
concern the failure of the council to await receipt of the Ministry of
Transport’s reply sought under article 11 of the General Development Order
1977, and the failure, accepted by the respondents, to allow the completely
full 21 days to elapse before the December resolution was passed (see para 3 of
the 1981 direction). Again, I am convinced that these requirements were
directory and not mandatory. Article 11(2)(b) is in my judgment plainly a
consultative requirement and as such cannot be said to go to the root of the
application in the sense that its completion should be held to be a condition
precedent to the validity of the deemed permission.
As to the 21
days’ notice (ground (iv)), I adopt Stocker J’s reasoning and decision in the St
Edmundsbury Borough Council case (pp 39 onwards). Where the triggering of a
set of rules depends, first of all, upon the council’s own opinion as to their
application, it seems to me that there is a strong inference that those rules
are directive and procedural, and in my judgment that is indeed their position
here.
I am not
persuaded by Mr Sher that article 11 was in any event complied with as a result
of the 1982 correspondence (p 367 and Mr Cuthbert’s second affidavit). Nor do I
resolve the question (which can remain open should this matter go elsewhere) as
to the applicability in any event of the 1976 regulations in the light of the
alternative code which Mr Sher argues to be relevant in this case.
I am relieved
not to have to strike down this case for any of the matters set out in ground 5
since, now that almost another year has passed, it is apparent that none of the
breaches did in fact lead to any prejudice or disadvantage to anybody, either
the applicants or any other possibly interested party, upon the evidence.
Certainly a time breach, which could only be one of a few hours, would be a
most unattractive weapon with which to kill the council’s grant. The Minister
of Transport’s reply was both anodyne and predictable and could not possibly
have affected or influenced the result of the council’s deliberations.
Finally, I
should add that there seems to me to be strength in Mr Sher’s argument overall
in the context of ground 5: first that the council may in any event be
performing a function or duty rather than a power, and, second, using Templeman
J’s words in Coney v Choyce [1975] 1 WLR 422 at p 433, that it
would be unfortunate indeed for ‘. . . the whole edifice of proposal and
approval to come crashing to the ground’ because of the matters set out in
ground 5. However, I do not conclude the power/duty point, nor of course do I
decide the case out of a desire necessarily to maintain Carlisle’s deemed
permission. I decide it for the reasons given and primarily on ground 5 on the
basis that I am convinced that for this case in any event the relevant
provisions are directory.
I would not,
in the exercise of my discretion, grant any relief in all the circumstances in
this case against the first respondents.
As to the
second respondents I can be brief, particularly in view of the judgment already
given in the first respondents’ case.
Mr Spence
argues that the application of the council should have been called in, as the
applicants and the county council asked, so that everybody could join a
multiple inquiry. But the Secretary of State, in the exercise of his wide
discretion, decided not to do so and to leave the council’s case to take its
course.
I am wholly
unable to find the Secretary of State’s decision perverse or so outrageous in
its defiance of logic or of accepted moral standards that no sensible person
who has applied his mind to the question to be decided could have arrived at it
(see Lord Diplock in the Council of Civil Service Unions v Minister
for Civil Service [1984] 3 WLR 1174 at p 1190). Indeed I find there is no
unreasonableness in the Secretary of State’s decision.
Furthermore,
as Mr Laws points out, this was a local matter in the Secretary of State’s
view, dealing with a site specific policy, and therefore it could not be said
that his decision to leave it to the local authority is in some way a misuse or
abuse of his power under section 35.
I find no
ground for complaint against the Secretary of State’s decision. Accordingly
these applications are refused.
Finally, I am
very grateful for the careful arguments put before me in a difficult case.
The
applications were refused with costs awarded to both respondents.
