Town and country planning — Environment Habitats Council Directive 92/43/EEC — Conservation (Natural Habitats, &c) Regulations 1994 — Application for planning permission to demolish building containing bat roost — Demolition also requiring licence from Natural England — Extent of duty imposed on local planning authority under regulation 3(4) of regulations — Whether duty to consider at planning permission stage whether requirements of directive met — Whether sufficient to impose condition requiring application for licence
The defendant local planning authority received a planning application regarding a site that adjoined the claimant’s land. Permission was sought to demolish an existing building and to replace it with apartments. A report produced by the defendants’ planning officer indicated the existence of a small pipistrelle bat roost. However, he recommended that the application should be approved subject to a condition to secure a method statement concerning mitigation measures in respect of the bats. The defendants granted the permission accordingly. Natural England subsequently granted the necessary licence for demolishing a site that contained a bat roost. The demolition proceeded. However, the developer went into administration and the site was put on the market with the benefit of the planning permission.
The claimant brought proceedings for judicial review of that permission. He contended that the defendants had failed adequately to consider the requirements of Council Directive 92/43/EEC (the Habitats Directive), as implemented by the Conservation (Natural Habitats, &c) Regulations 1994. This permitted derogation from the protection of the breeding or resting places of certain species, including pipistrelle bats, only if certain strict tests were met. The claimant submitted that the defendant had failed to “have regard to” the requirements of the directive as required by regulation 3(4). The defendants argued that since the demolition also required a licence, the only duty imposed by regulation 3(4) at the planning permission stage was to note the existence of the directive and the regulations and the presence of the relevant bats.
Held: The application was granted. Regulation 3(4) requires a local planning authority to engage with the provisions of the directive and to consider whether the derogation requirements can be met. The authority should refuse planning permission if it is clear or very likely that the requirements of the directive cannot be met. If, on the other hand, it appears that the requirements are likely to be met, the authority will have discharged their duty to have regard to the requirements and no impediment to planning permission will arise on that ground. Where it is unclear that the requirements will be met, the authority must take a view on whether, in all the circumstances, that should affect the grant. A local planning authority cannot discharge their duty under regulation 3(4) simply by making the obtaining of a licence a condition of the grant of permission. The making of a condition is not the same as engaging with the directive. Nor can the authority’s duty be discharged by referring in the permission to the existence of the 1994 Regulations and the requirement for a licence. The defendants were in breach of regulation 3(4) because they had not embarked on the required exercise. The planning officer’s report should specifically have raised the specialised duty under regulation 3(4) so that the defendants’ planning committee could then seek to discharge it. Since it had not referred either to the directive or to the 1994 Regulations, the defendants had not considered them. Accordingly, the planning permission had to be quashed. Further grounds for quashing arose from the failure to consider certain relevant development plan policies and the failure of the planning officer’s report to state whether the development would comply with these.
The following cases are referred to in this report.
Berkeley v Secretary of State for the Environment, Transport and the Regions (No 1) [2001] 2 AC 603; [2000] 3 WLR 420; [2000] 3 All ER 897; (2001) 81 P&CR 35; [2000] 3 PLR 111; [2001] JPL 58, HL
Commission of the European Communities v Finland C-342/05 [2008] Env LR D1, ECJ
R (on the application of Lowther) v Durham County Council; sub nom R v Durham County Council, ex parte Lowther [2001] EWCA Civ 781; (2002) 1 P&CR 283; [2001] 3 PLR 83; [2002] JPL 197, CA
R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin); [2007] 2 P&CR 30; [2008] JPL 195
R (on the application of Tratt) v Horsham District Council [2007] EWHC 1485 (Admin)
Simplex GE (Holdings) Ltd v Secretary of State for the Environment (1988) 57 P&CR 306; [1988] 3 PLR 25
Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759; [1995] 2 All ER 636; (1995) 70 P&CR 184; [1995] 2 EGLR 147; [1995] 27 EG 154
This was the hearing of an application by the claimant, Simon Woolley, against the defendants, Cheshire East Borough Council, for judicial review of a planning permission.
Richard Harwood (instructed by DLA Piper) appeared for the claimant; Martin Carter (instructed by Cobbetts LLP) appeared for the defendants; the interested party did not appear and was not represented.
Giving judgment, HH Judge Waksman QC said:
Introduction
[1] This is the hearing of a substantive application for judicial review of the grant of planning permission by the defendants, now known as Cheshire East Council (the council) for the demolition of a property known as Bryancliffe, in Wilmslow, Cheshire, and its replacement by a larger property consisting of three apartments. The planning permission itself was granted on 15 February 2008. That followed a resolution of the council’s planning subcommittee to grant permission subject to conditions and the making of a section 106 agreement on 24 October 2007. |page:90|
Background
[2] The site in question abuts land running down to the River Bollin. See the plan at p261 of the bundle and the photographs at pp148-153 [not reproduced here]. The area surrounding the river is a designated area of special county value (ASCV), although the site itself is not. The site was largely hidden from the river by a row of mature trees. The developer that bought the site in 2003 (Millennium, the interested party in this case) cut down those trees shortly after acquisition. They were not protected and it was entitled to do so.
[3] Millennium first applied for planning permission on 15 April 2005, but it was refused on 15 June. On 9 October 2006, a planning appeal against that refusal was dismissed by the inspector. A second application was made on 22 December 2006 but later withdrawn after an adverse committee report. A third (and the ultimately successful) application was made on 16 August 2007. On 25 September, the claimant in this case, the owner of an adjoining property called Bollinholme, made representations through his solicitor. On around 14 October, the operative planning officer’s report was produced for consideration by the planning subcommittee on 24 October.
[4] After the planning subcommittee promulgated its resolution of 24 October, Mr Simon Woolley’s solicitor sent a pre-action protocol letter to the council dated 7 November 2007, threatening judicial review unless their resolution was set aside and the matter returned to the planning subcommittee. This was refused and the formal planning decision letter of 15 February 2008 later followed.
[5] In very broad terms, the reason why the appeal failed in 2006 was because the inspector found that the view of the proposed property from the river (unmasked by trees) was an unacceptable visual intrusion on the ASCV. Millennium had proposed the planting of trees so as (once more) to mask the property, but because of the then layout and location of the flats the inspector held that the owners were likely subsequently to obtain permission to remove them.
[6] It was also the case before the inspector that a small bat roost had been found at the existing property. A bat assessment (divider 13) dealt with the evidence as to the existing roost and put forward proposals for adequate mitigation compensation and enhancement for the local bat population. The inspector found that the proposal would not result in significant harm to biodiversity interests as set out in para 1 of national policy statement PPS 9.
Planning officer’s report
[7] The report referred to the land lying to the north of the site as being within the Bollin Valley, where special conservation policies applied, and also within the green belt and an ASCV. The key issues concerned the effect on: (i) the visual amenity of the Bollin Valley; (ii) protected trees at the site; and (iii) the neighbours’ residential amenities. It noted that Millennium had now improved the siting, design and orientation of the new building and had also proposed a wider tree belt along the northern side of the site. It had also amended the bank profile so as to raise the height of the bank to form an even slope.
[8] The existing villa was an intrusive urban feature visible from the River Bollin. The new building would be significantly larger than Bryancliffe in terms of footprint mass and scale and would be 1-2m higher, although 4m further away from the valley bank than Bryancliffe. The new building would have a significant visual effect on the valley until the proposed tree belt matured sufficiently to screen and filter views.
[9] At p6, the report stated that the most relevant structure and local planning policies included a list of various numbered policies. The inspector’s report on the appeal on the previous planning refusal was said to be a significant material consideration. At p7, the inspector’s concern at the visual intrusion of the proposed new apartments was set out in detail. He had concluded that, owing to its elevated position, the development would be an unduly prominent urban intrusion and that its “unacceptably urbanising effect on the open rural character and visual amenities of the Bollin Valley” conflicted with SP policies R2, GEN 3 and NE 1, among others. As already noted, he also found that the proposed tree planting plan before him would not provide a solution.
[10] The report noted that the main improvement now was that the new building would be set further back from the valley, allowing a belt of woodland to be planted, and the regrading to the embankment would increase the height of the planting. The result of the resiting of the apartments meant that any new trees would not be under threat of removal by future residents.
[11] Although the new building would be much more prominent than the existing one, it would become gradually screened over the 20 years it would take for the new trees to be fully established. At that point, the resulting view from the Bollin valley would be improved from the existing situation. Hence, “the main issue for members to determine is whether the potential longer-term improvements outweigh the harm to the visual amenities of the Bollin Valley that would result in the earlier years following development”.
[12] The report concluded thus: “Taking into account all representations made, the proposed development is considered acceptable in terms of design the impact on the living conditions of the occupiers of adjoining property the impact on housing supply in the Borough, the interests of nature conservation the impact on protected trees and highway considerations. It is also considered though, that the proposed development will introduce an intrusive building into the landscape when viewed from the Bollin Valley which is characterised by its wooded sides and limited views of buildings. However, on balance, subject to the introduction of a comprehensive and long term landscaping plan, it is considered that the negative impacts of the development can be adequate mitigated and hence overcome the concerns with the previously dismissed appeal. The application is therefore recommended for approval.”
[13] The report also said that a condition would have to be imposed to secure a method statement concerning the mitigation for the bats.
[14] I will deal with other aspects of the report, in context, below.
[15] The council agreed with the recommendation in the report of 24 October, as noted above. It delegated the matter to the corporate manager of planning and development for approval subject to the completion of a section 106 agreement, to include reference to the fact that any planting must take place prior to the commencement of building works and the conditions set out in the report.
Present position
[16] It is common ground, for the reasons set out below, that where demolition was proposed in respect of a site containing a bat roost a licence from Natural England was required. Such a licence was acquired by Millennium on 16 July 2008. In August 2008, it demolished the old building. However, in January 2009, it went into administration. So there is now, no longer any intrusive urban view affecting the valley of the River Bollin. The site with the benefit (or otherwise) of the now-challenged planning permission is up for sale. The administrators took no part in this hearing.
Issues generally
[17] The planning permission is challenged on a total of seven grounds. I deal with each in the order taken by counsel at the hearing. It is common ground that subject to the decision of the House of Lords in Berkeley v Secretary of State for the Environment, Transport and the Regions [2001] 2 AC 603, dealing with obligations under EC law, if the permission is found by me to have been unlawful in any way it should be quashed, provided that the outcome, if there had been no unlawfulness, may or might have been different. Mr Woolley does not have to show that it necessarily, or even probably, would have been: see Simplex (GE Holdings) Ltd v Secretary of State for the Environment (1988) 57 P&CR 306, at p327. That deals with the hypothetical position at the time of the original permission. If there might have been a difference at that time, however, Mr Richard Harwood, for Mr Woolley, accepted that he would also have to show that there might also be a difference were the council to make a fresh decision now. There was no issue about that. Mr Martin Carter, for the council, conceded that they might well have done, which is hardly surprising given the change of circumstances referred to above. |page:91|
[18] I deal with the EC law aspect of this in the context in which it arises ground 1 to which I now turn.
Ground 1: Failures in connection with the EC Habitats Directive
Legal materials
[19] Article 12(1) of the EC Habitats Directive requires member states to take requisite measures to establish a system of strict protection of certain animal species, prohibiting the deterioration or destruction of breeding sites or resting places. It is common ground that the pipistrelle bats that had their roost at Bryancliffe are so protected. Article 16 then provides that if there is no satisfactory alternative and the derogation is not detrimental to the maintenance of the populations of the species at a favourable conservation status in their natural range, member states may derogate “in the interests of public health and public safety or for other imperative reasons of overriding public interest, including those of a social and economic nature and beneficial consequences of primary importance for the environment”, among other reasons.
[20] All derogations have to be reported to the European Commission every two years and, in Commission of the European Communities v Finland C-342/05*, the European Court of Justice held that member states were to ensure that all action affecting the protected species was authorised only on the basis of decisions containing a clear and sufficient statement of reasons referring to the reasons, conditions and requirements of article 16(1).
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* Editor’s note: Reported at [2008] Env LR D1
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[21] This directive is then implemented by the Conservation (Natural Habitats, &c) Regulations 1994 (the regulations). The regulations set up a licensing regime dealing with the requirements for derogation under article 16; this function is now carried out by Natural England. However, regulation 3(4) provides that local planning (among other) authorities must “have regard to the requirements of the Habitats Directive so far as they may be affected by the exercise of those functions”.
[22] The critical issue that arises under this ground is how a local authority, such as the council here, should have regard to the directive. The most pertinent and direct guidance is given by ODPM Circular 06/05, which accompanied and is complementary to PPS 9. Paragraph 98 thereof refers to protected species generally, stating that they are a material consideration for planning permission purposes and that local authorities should consult English Nature before granting planning permission. It then refers to the “further strict provisions” for those species governed by the regulations.
[23] Paragraph 103 then refers to the licensing regime, pointing out that planning permission does not absolve the relevant party from obtaining a licence.
[24] Paragraph 116 provides as follows:
When dealing with cases where a European protected species may be affected, a planning authority… has a statutory duty under regulation 3(4) to have regard to the requirements of the Habitats Directive in the exercise of its functions. So the Directive’s provisions are clearly relevant in reaching planning decisions, and these should be made in a manner which takes them fully into account. The Directive’s requirements include a strict system of protection for European protected species prohibiting deliberate killing catching or disturbing of species and damage to or destruction of their breeding sites or resting places. Derogations from this strict protection are only allowed in certain limited circumstances and subject to certain tests being met. Planning authorities should give due weight to the presence of a European protected species on a development site to reflect these requirements, in reaching planning decisions and this may potentially justify a refusal of planning permission.
[25] Defra Circular 2/2002 is also relevant. It deals with the duties of local planning authorities to provide information to the licensing authority then dealing with a licence application under the regulations. This is not of direct relevance to the question of their duties when considering a planning application itself. However, it is worth noting that, at p2, it is said that authorities will typically be asked to provide information as to whether the tests specified in article 16(1) of the directive and regulation 44 of the regulations have been met. This will include an assessment of the importance attached to the development against the background of national planning policy guidance and regional and local development plans, including material considerations. This shows that local planning authorities are expected to have the knowledge to assist in the exercise of whether the article 16(1) tests (see [20] above) are met.
Relevant duty at the planning stage
[26] Mr Carter submitted that the only duty imposed by regulation 3(4) on an authority at the planning stage is to note the existence of the directive and regulations and to note the existence of the relevant bats; and beyond perhaps also stating that the applicant for permission needs a licence the authority need not go.
[27] I disagree. That approach disregards the very clear guidance set out in para 116 of ODPM Circular 06/05, which: (a) refers to the giving of weight “to reflect these requirements”; and (b) contemplates that as a result of taking account of the directive the authority might refuse permission altogether. Indeed, Mr Carter conceded, as he was bound to do in order to give any meaning to the last part of para 116, that in a serious enough case, such as an application to build a supermarket on a brownfield site that would involve considerable disruption to a local bat population, the authority might refuse permission where there was adequate space somewhere else on the brownfield site. However, if that is right, it recognises that the local authority should engage with the provisions of the directive. In my view, that engagement involves a consideration by the authority of those provisions and considering whether the derogation requirements might be met. This exercise is in no way a substitute for the licence application that will follow if permission is given. However, it means that if it is clear, or perhaps very likely, that the requirements of the directive cannot be met because there is a satisfactory alternative or because there are no conceivable “other imperative reasons of overriding public interest”, the authority should act on that and refuse permission. On the other hand, if it seems that the requirements are likely to be met, the authority will have discharged their duty to have regard to the requirements and there would be no impediment to planning permission on that ground. If it is unclear to the authority whether the requirements will be met, they will just have to take a view as to whether, in all the circumstances, it should affect the grant or not. However, the point is that it is only by engaging in this kind of way that the authority can be said to have any meaningful regard for the directive. The very attenuated duty suggested by Mr Carter for the council is, in truth, no duty at all.
[28] I have considered whether the council could discharge their duty simply by making the obtaining of a licence a condition of the grant of permission. However, that is not sufficient. After all, if no licence is obtained it is a criminal offence, so there is a clear incentive to obtain one anyway. Moreover, the making of a condition is not, in truth, engaging with the directive.
Were the council in breach of regulation 3(4) here?
[29] In my view, they clearly were. Indeed, it is not suggested that the council embarked on the kind of exercise referred to above. The planning officer’s report made no mention of the directive or the regulations. It referred to the need to have a condition for the mitigation of disturbance to the bats, but that in effect assumes that the article 16(1) requirements could otherwise be met. It is true that the bat assessment on Bryancliffe that was referred to in the planning officer’s report itself makes reference to the regulations and the need for a licence together with a limited reference to OPDM Circular 06/05. However, that does not amount to consideration by the council.
[30] Mr Woolley’s solicitor’s pre-action protocol letter dated 7 November 2007 expressly referred the council to the relevant provisions of the regulation and ODPM Circular 06/05, including para 116. Following this letter, the council had sought to consult with Natural England. Natural England’s response was in effect that it did not have sufficient resources to provide a detailed commentary on the proposed development. However, the points made in the letter concerning the council’s duty under para 116 were not taken up or dealt with in Cobbett’s response to that letter. That duty can be fulfilled without input from Natural England. |page:92|
[31] The planning permission itself stated in reason 6 that the proposal had an acceptable effect on European protected species. However, that is not the question posed by the directive and regulation 3(4), which concerns the requirements to be met before any derogation can take place. Equally, a reference at the end of the permission to the existence of the regulations and the need for a licence cannot discharge the council’s duty. The planning officer should have specifically raised this rather specialised duty on the council in his report so that the planning subcommittee could then seek to discharge it. Since there was no reference to any of the relevant materials, it is hardly surprising that the council gave them no consideration.
[32] Accordingly, it is clear that the council were in breach of regulation 3(4).
Consequences
[33] Mr Carter accepted that if I reached this conclusion as to the nature of the council’s duty and their consequent breach, the unlawfulness on their part had to be seen as a substantive breach of European law. On that basis, since it is not suggested that the breach was de minimis, the principles enunciated by Lord Bingham and Lord Hoffmann in Berkeley (supra at pp608, 613 and 615) come into play. In such a case, the unlawful decision should be quashed without more. The court does not even enquire as to whether it could be said that the impugned decision would have been the same in any event.
[34] In any event, given the strict requirements for any derogation I would be very reluctant to hold that the outcome would have been the same in any event. Moreover, the fact that a licence was ultimately obtained (and based on what appear to be some questionable assertions concerning the existing property and its ability to be used in the future) does not alter that conclusion. Indeed, at the inquiry, Millennium’s planning witness agreed that imperative reasons of overriding public importance did not arise and that there was a suitable alternative to demolition, which was to retain Bryancliffe.
[35] The planning permission must therefore be quashed on this ground alone. Strictly, it is not necessary for me to deal with the other grounds in the light of this conclusion. However, in deference to the arguments made, I will deal with them briefly below.
Ground 5: Failure to take account of certain applicable policies
Law
[36] Section 70(2) of the Town and Country Planning Act 1990 requires the planning authority to have regard to the development plan so far as is material to the application and to any other material consideration. Section 38(6) of the Planning and Compulsory Purchase Act 1994 states that if regard is to be had to the development plan the determination must be made in accordance with the plan unless material considerations indicate otherwise.
[37] It is accepted by Mr Harwood that if, in substance, the planning authority have considered the application, taking into account the provisions of a particular policy, the fact that no specific mention is made of it does not render the decision unlawful. One example of that would be where several policies in effect say the same thing but only one is mentioned.
[38] A planning officer also has a duty to provide sufficient information and guidance to the planning subcommittee to enable it to reach a decision applying the relevant statutory criteria: see R (on the application of Lowther) v Durham County Council [2001] EWCA Civ 781; [2001] 3 PLR 83, at p105.
Relevant policies
[39] Mr Woolley contended that the council failed to have regard to a number of policies. They are referred to in para 98 of Mr Harwood’s skeleton argument. It seemed to me that the only two policies that (a) have real relevance and (b) whose provisions might have altered the approach taken by the council are structure plan R1 and GEN 3. Both of them were stated in the planning permission to be relevant. R1 did not feature at all in the planning officer’s report. GEN 3 did, not as one of the listed relevant polices but as one that the inspector had relied on in the appeal when he upheld the refusal.
R1
[40] At one stage, it was contended that this policy was not actually relevant. That was a somewhat surprising submission in the light of the fact that the planning permission (issued after Mr Woolley’s pre-action protocol letter) said that it was. In any event, I find that it was. It refers to loss or damage to particular sites, including ASCVs. This includes, in my judgment, interference with its setting. That in turn can include the view to be had from the site that forms part of its overall value.
[41] In the highlighted section of the first part of R1 it is stated that:
Where, exceptionally, because of other overriding considerations, unavoidable loss or damage to a site or feature or its setting is likely as a result of a proposed development measures of mitigation… will be required.
[42] And para 5.24 says that R1 acknowledges that:
a development which would damage a heritage site or feature may exceptionally be allowed because of other overriding considerations. These considerations relate to the need for the development and whether there are alternatives to the proposal. Alternatives include a reduction in scale or redesign of the development and whether it can be accommodated on a suitable site elsewhere.
GEN 3
[43] This states that all developments will be required to minimise adverse effects on the beauty, heritage value and amenity of its site and surroundings. Also, a development that has a major adverse effect on adjacent areas, particularly ASCVs, should not be allowed.
Were the council in breach?
R1
[44] There can be no question but that the council must have regarded their task on this application as essentially balancing two conflicting considerations the adverse visual effect from the point of view of the river valley caused by the erection of a new, much larger building, on the one hand, and the ultimate benefit of the screen provided by the new trees, on the other. However, R1 suggests that damage to the setting should be permitted only exceptionally. In a case where, on any view, the competing considerations were finely balanced and against a background of two prior failed applications at the same site, an appreciation of the need to show an exceptional case was of significance, as were the other points made in para 5.24. In my judgment, the council should have been alerted by the planning officer specifically to R1 for that reason. They were not and did not have it in mind.
GEN 3
[45] This was of course mentioned in the report as being a policy relied on by the inspector. However, what does not clearly emerge from that is the stipulation that if the development causes a major adverse effect on an adjacent ASCV, it should not be allowed. Of course, that is not an absolute but it is a strong indicator. That feature of GEN 3 was not set out in terms and, in my judgment, it should have been.
Timing of the effect
[46] Mr Carter contended that there is a real question concerning the extent at least of the application of R1 and GEN 3 since any interference would be for the limited period of 20 years at most and decreasing before then. I take that point and obviously the council had the 20-year period in mind. However, that does not alter the fact that they should have considered these policies head on, as it were, and within that they could have considered the ameliorating tendencies of the fact that the effect was not to last for a lifetime.
Conclusion
[47] Accordingly, I find that there was unlawfulness here as well. Moreover, given the fine balancing exercise in any event performed here, it is impossible to say that the result would have been the same had the council considered these two policies directly.
Ground 4: Failure of the report to say whether or not there was compliance with the policies in the development plan |page:93|
[48] The planning permission states that the proposal did not comply with all relevant policies in the development plan, but it was considered acceptable because of the long-term landscape mitigation. Although the report clearly addressed the competing considerations for the planning subcommittee, it did not directly address the question of compliance or otherwise with the development plan. Although, often, policies within a development plan as it affects a proposal might pull in different directions (for example, housing or employment need as against conservation of the landscape), it is not clear that there were conflicting policies as such here. The proposal manifestly had nothing to do with employment, and the council had a moratorium on more housing at the time so that policy pulled in the same direction as conservation.
[49] Given the debate before me as to whether, for example, policies R1 or GEN 3 were truly engaged at all, I take the view that the report should have expressed a view concerning non-compliance or otherwise with the relevant policies (or the development plan as a whole) so that the council had a clear view of the legal framework within which they were to operate given the terms of section 38(6). This was all the more important where the matter was a finely balanced one. The fact that the planning permission expressly stated that there was non-compliance but this was outweighed here itself shows the relevance of the question of compliance or otherwise.
[50] Mr Carter submitted that it might not be possible for the planning officer to come to a clear view on compliance because here it could be said that the temporary nature of the intrusion meant that there was compliance or, alternatively, there was not but there were other material considerations. However, that possible ambiguity does not prevent the planning officer from taking a view and setting these matters out. Moreover, in any event, an officer at some stage prior to the planning permission (but not the planning committee it would seem) took the view that there was non-compliance, hence the statement in the permission.
[51] As with ground 5, to which this ground is in truth closely allied, it is not at all clear that the council would inevitably have come to the same view had the question of compliance been brought to the committees’ attention and addressed head on. So, this is another ground for quashing the permission.
Ground 2: Failure to consider alternatives
[52] As ultimately refined, the allegation here was that before the council agreed that the benefit of a new row of trees screening the proposed building outweighed the visual intrusion for the first 20 years, they should have considered what might have happened if no permission had been granted. The existing owner might have decided to plant trees in front of the river valley anyway so that the desired screen would emerge in any event. Then, the supposed virtue of this development would in truth have been no virtue because the development was not needed in order to provide the screen.
[53] In my judgment, there was nothing in this point. The council were not required to indulge in speculation concerning what this or some future owner of the site might do in terms of trees, or at all events it was well entitled to decide not to. Millennium might be thought to be unlikely to plant outside of a permission since it had cut down the original trees in the first place. Moreover, the position of any purchaser from it was simply unknown. An owner may have preferred an uninterrupted view of the river. Moreover, even if an owner at some point in the future were to plant trees, that process would be starting later than any planting to be undertaken first off as a condition of this planning permission.
[54] This ground of challenge therefore fails.
Ground 3: Proposed swap of units between Bryancliffe and Macclesfield Road/Daveylands sites was irrelevant and contrary to Circular 05/05
[55] The council’s then policy was against any net increase to the housing supply in the area in which of course this development was. Millennium, however, had planning permission for the building or conversion of up to 15 apartments at another site. It agreed to enter into a section 106 obligation whereby that permission would not be put into effect if it built according to a permission for the apartments at Bryancliffe. The council agreed to this “swap” so that the net housing supply was not increased as a result of the development at Bryancliffe.
[56] Circular 05/05 emphasises that planning obligations should be linked to the proposed development, with a functional or geographical link between the development and the item being provided by the obligation. In Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759*, Lord Keith stated that an offered planning application that had nothing to do with the development apart from the fact that it was offered by the developer will plainly not be a material consideration and could be regarded as an attempt to buy planning permission. If it had some connection with the proposed development that was not de minimis, regard should be had to it.
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* Editor’s note: Also reported at [1995] 2 EGLR 147
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[57] Here, it is said that there was no connection between an offer not to implement a planning permission at some other site in order to obtain permission on this site. Moreover, in any event, the council failed to consider whether that other permission might have expired before being implemented anyway.
[58] I do not accept this. First, it seems to me that there is a proper functional link between what was offered and this development. Specific objection was taken on the basis that without more housing supply would increase in contravention of council policy for the area. That consideration by definition deals with a general matter (housing in the area) rather than something specific to the site itself. If the developer is in a position to avoid any net increase to housing supply in the area by giving up another permission, there is a direct connection with one of the policy considerations affecting the planning permission sought. It is not the same as “buying” the instant permission.
[59] Moreover, it was not for the council to speculate whether the other permission would in fact be implemented. That would have been an impossible task and they were entitled to assume that since it had been sought, the likelihood was that it would be implemented.
[60] In para 34 of his decision, the inspector reached the same view, and he was right to do so.
[61] Accordingly, this ground of challenge fails.
Ground 6: No authority to issue the planning permission since the decision notice did not include a condition requiring a method statement for planting on the slope or landscape and implementation conditions
[62] The report recommended approval subject to a list of conditions that included the submission of details and approval of all landscaping (A01LS) and implementation of landscaping (A04LS). There should also be a method statement for planting on the slope. See conditions 6, 7 and 24. However, such conditions were not included within the planning permission. It is said that they were omitted without authority from the council and, accordingly, the planning permission as a whole was unauthorised and should be quashed for that reason. The original ground 6 referred only to the omission in the planning permission of a condition in respect of the method statement.
[63] The minutes of the planning subcommittee state that this application was to be delegated to the corporate manager for planning for “approval subject to the completion of a Section 106 Agreement to include reference to the fact that any planting must take place prior to the commencement of building works and that any damaged verges must be reinstated, the conditions set out in the report and additional conditions relating to the provision of a wheelwash and the gate post being protected and reinstated”. On the face of it, therefore, the council appeared to want all the conditions recommended by the planning officer, as well as the section 106 agreement to include planting, to take place before the commencement of the building works.
[64] However, para 3 of the letter from Cobbetts dated 13 March 2008 states that the council members considered that the grading works should be undertaken before the building works commenced, and this was included in the section 106 agreement. Accordingly, there was no further requirement for the condition and it was omitted from the |page:94| decision notice. This explanation was no doubt given on the instructions of the council, and it suggests that whatever the minutes might say the intention was that the condition dealing with a method statement was no longer needed. Certainly, if it was intended to deal with some aspect of the grading works in the section 106 agreement it would seem very odd if other aspects still fell to be dealt with by conditions. So although the minutes referred to the conditions generally, there was no intention in fact to retain a condition for the method statement.
[65] Paragraph 1.5 of Schedule 1 to the section 106 agreement provides that a “Detailed Planting Plan and Method Statement will be submitted to the Council for approval prior to the Commencement of the Bryancliffe Permission such consent not to be unreasonably withheld or delayed”.
[66] Paragraph 1.6 requires Millennium to “implement the On-Site Landscaping Scheme prior to the Commencement of the Bryancliffe Permission”.
[67] The detailed planting plan refers to a plan giving details of what was to be planted and where. The method statement was defined to mean a method statement for the construction and detail of the retaining walls on the site, the formation of any banks, the planting of any trees and details of any irrigation scheme.
[68] The on-site landscaping scheme meant the method statement, detailed planting plan and drawing no M1445.01G as annexed to the agreement.
[69] In my judgment, the effect of all of that was that Millennium had to submit its proposed method statement and planting plans to the council for approval prior to commencing the development and that approval had to be given before such work commenced. That is my interpretation of para 1.5. Then, under para 1.6, all the landscaping work (as approved under para 1.5) had to be completed prior to the commencement of the development. I do not read “implement” as meaning “start”. I take Mr Harwood’s point that my interpretation might mean that some (but by no means all) of the soft landscaping could not easily be done before the building works started or might be at risk of disruption once they were. Some relaxation of this obligation might be needed in practice. However, this potential problem does not to my mind impel a reading of the word “implement” that is contrary to its normal sense. Moreover, to read it as meaning “start” deprives the obligation of much of its effect and would run counter to the council’s clear intention expressed at the meeting.
[70] Accordingly, as far as the method statement for the grading works is concerned, I do not consider that there was in truth any departure from what the council authorised in the meeting of the planning subcommittee.
[71] As for soft landscaping other than that involved in the regrading works, I accept that there is a technical difference between placing an obligation within a condition and simply making it part of the section 106 agreement. Breach of condition can lead to the issue of an enforcement notice claiming that the development is unlawful, with the possibility of a criminal sanction if not rectified. Moreover, although an injunction can be sought on the ground of a breach of a section 106 notice, the council have the power to seek an injunction in respect of the non-fulfilment of a condition.
[72] However, given that the council clearly wanted a very important aspect of landscaping (to do with regrading) covered in the section 106 agreement, it is far from obvious to me that in truth they were still insisting on other aspects of soft landscaping remaining as conditions as opposed to being put into the agreement as well. As interpreted by me, paras 1.5 and 1.6 well cover all the soft landscaping points. The amendment to ground 6, to include complaints concerning the lack of conditions dealing with soft landscaping, came very late in the day. Moreover, although Mr Carter was sensibly prepared to deal with them, there was not the same opportunity for the council to deal with them as they had had when the method statement point was raised in DLA Piper’s letter of 29 February 2008. Given that the council might well in fact have been intending that all landscaping should now be in the section 106 agreement, which provides for it comprehensively, I am not prepared to find on the materials before me that the officer drawing up the planning permission had no authority to deal with that question in the way that he did.
[73] Accordingly, ground 6 fails.
Ground 7: Failure adequately to summarise the relevant policies
[74] Article 22(1)(b) of the Town and Country Planning (General Development Procedure) Order 1995 requires decision notices to include a summary of the relevant policies.
[75] As noted above, the planning permission makes reference to a number of policies. It does so by citing their number and then, in brackets, what they are about: see p382 of the bundle. It is said that a fuller description should have been given so as to refer to the particular parts of them that had a bearing on the decision. Reference was made to the decision of Collins J in R (on the application of Tratt) v Horsham District Council [2007] EWHC 1485 (Admin), in which he stated that it would be insufficient to identify a policy without indicating what it concerns (as occurred in that case). A summary of the relevant policies was required. It need be no more than a few words identifying the relevant aspect of the policy. In R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council [2007] EWHC 1714 (Admin)*, Collins J said that all that was needed was an indication of what the policy deals with in so far as it is material to the permission in question.
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* Editor’s note: Reported at [2007] 2 P&CR 30
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[76] In my judgment, the summaries given in the planning permission here were sufficient especially bearing in mind the relatively narrow compass of the issues arising.
[77] Accordingly, this final ground of challenge fails also.
Conclusion
[78] However, because of my determination of grounds 1, 4 and 5 in favour of Mr Woolley, this application for judicial review succeeds and the decision that granted planning permission dated 15 February 2008 must be quashed.
[79] I am indebted to both counsel for their excellent and helpful oral and written submissions. I will hear from them hereafter, if necessary, on any consequential matters that cannot be agreed.
Application granted.