Judicial review — Whether local planning authority acted improperly in resolving to grant planning permission before terms of related section 106 agreement known — Whether there was failure to take into account a material matter
The applicants,
a firm of solicitors, occupied premises at 86 and 88 Newington Butts. In May
1993 an application was made to the respondents, Southwark London Borough
Council, by South Bank University and another for planning permission to
demolish existing buildings at 86-102 Newington Butts and to build a
four-storey building providing student accommodation for 154 people. The layout
submitted allowed for only six parking spaces within the site.
The officer’s
report stated that the use of the site for residential accommodation accorded
with the unitary development plan, but concluded that the standard of
accommodation in terms of density, layout, parking and amenity space made the
development unsuitable for
under section 106 of the Town and Country Planning Act 1990 was required to
control further occupancy. The respondents resolved that, subject to a legal
agreement, planning permission should be granted.
The applicants
applied unsuccessfully in the High Court for judicial review of the
respondents’ decision and were refused leave to appeal. They applied to the
Court of Appeal for leave to appeal against the judgment of the High Court.
They contended: (i) there had been a procedural impropriety in that when the
respondents resolved to grant planning permission they did not know the terms
of the section 106 agreement and those terms had not been disclosed to the
applicants as objectors; and (ii) the respondents failed to take material
matters into account, namely the fact that Newington Butts was going to be, or
had been, designated as a ‘red route’ for the purpose of parking restrictions.
dismissed.
Where a
section 106 agreement was merely regulatory of how premises were to be occupied
or used, save in an exceptional case there was no requirement that the terms of
the agreement be brought to the notice of objectors: see p50C-D.
The decision
of the respondents would not have been different if they had before them the
section 106 agreement as it was in fact drawn up or if their attention had been
drawn specifically to the fact that Newington Butts was a designated ‘red
route’: see p51B.
to in the judgments
Bolton
Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343; [1991] JPL 241, CA
Application
for leave to appeal against decision of Macpherson J
This was an
application for leave to appeal against a decision of Macpherson J, who had
dismissed applications for judicial review of certain decisions by Southwark
London Borough Council granting planning permission.
Newberry QC and Robin Spon-Smith (instructed by Daniel Davies & Co)
appeared for the applicants.
Spence QC and Robin Green (instructed by the solicitor to Southwark London
Borough Council) appeared for the respondents.
following judgments were delivered.
NEILL LJ: In May 1993 South Bank University, together with Greater London
Enterprises Property Ltd, made an application to Southwark London Borough
Council for permission to demolish some existing buildings at 86-102 Newington
Butts in the borough and to build on it a four-storey building containing a
number of student rooms. The building was to provide 27 student flats
accommodating 154 people, divided between some flats for six people and some
for four. 86
Daniel Davies & Co. They were duly notified of the application and they
objected to it.
The
application came before the planning and traffic management subcommittee of the
borough on July 19 1993. The recommendation of the planning department was that
permission should be granted subject to a legal agreement made in accordance
with section 106 of the Town and Country Planning Act 1990. The papers before
the committee, which were voluminous because they also included papers relating
to a number of other planning applications, included the comments of the
department of environmental services in the borough, the highway branch and
also a list of persons who had been consulted about this proposal. Among those
consulted were Daniel Davies, the solicitors. It is necessary to refer to what
the highway branch said about the application. They said:
Newington
Butts is a designated road within a controlled parking zone. Raises a number of
concerns relating to the minimal parking provision, location of the bin store
and the need for pedestrian sight splays.
Then on the
following page there was a comment made by the department of the matters which
would be considered in relation to the proposal. It was said that the use of
the site for residential accommodation accorded with the unitary development
plan and was therefore appropriate in principle. It was also said that the site
would be unsuitable for houses with gardens, but was appropriate for the
specialised residential accommodation. Attention was drawn to the fact that the
density, which would include 154 bed spaces, would be extremely high, but that
that was suitable having regard to the fact it was for student use. Attention
was also drawn to the fact that the lay-out only allowed for six parking spaces
within the site. It was pointed out that concern had been expressed about that,
but there was no formal objection to the proposal by the highway department.
The conclusion
in that particular section of the papers was:
The standard
of accommodation in terms of density, layout, parking and amenity space make
the development unsuitable for occupancy other than by the specified student
group, and for that reason an agreement under Section 106 is required to
control further occupancy.
Attached to
that paper was a draft of a planning permission which was headed ‘Subject to
legal agreement’. The document included some seven conditions to which the
planning permission would be subject. The fifth condition was in these terms:
The whole of
the car parking shown on the drawings hereby approved shall be provided and
retained for the purposes of car parking for vehicles of the occupiers of the
building and shall not be used for any other purpose.
A little later
down were set out the reasons for the imposition of the conditions and against
no 5 it was said:
In order that
the car parking provided is retained for use by the residents of the building
to reduce the impact on on-street parking in the area.
The committee,
having considered the matter, agreed that subject to a legal agreement planning
permission could be granted.
On September 6
1993 a similar application, to which it is not necessary to make any detailed
reference, came before the same committee. That was in respect of a slightly
smaller part of the same site and that related to 90-102 Newington Butts and
therefore did not include nos 86 and 88. It will be remembered that it is no 86
(and part of no 88) which is occupied by the firm of solicitors. Similar
documents were put before the committee and on this occasion also the committee
agreed that, subject to a legal agreement under section 106, planning
permission would be granted.
The applicants
in the present proceedings, that is, the solicitors, then applied for leave to
move for judicial review of both the July and the September decisions. It is
not necessary for the purpose of considering the present appeal to trace in
detail the procedural steps that were taken. It is sufficient to notice that on
November 24 1993 the applications came before Macpherson J sitting in the Crown
Office List. At the conclusion of the hearing he indicated that the
applications for judicial review would be rejected and on December 3 he gave
judgment giving his reasons. Before the judge a number of grounds were relied
upon. They had been foreshadowed in the form 86A, which had been lodged.
However, we are currently concerned with only one of the grounds relied on
before the judge, but there is, in addition, a further matter which came to
light since and which, without objection, is now before this court in support of
the application for leave to appeal against the judge’s judgment.
The grounds
which have been put before the court by Mr Clive Newberry QC on behalf of the
applicants raise two questions: first, procedural impropriety and, second, a
failure of the committee to take material matters into account.
The first and
principal argument which has been directed to us is that the decisions were
flawed because the committee, when they came to give their approval in July and
later in September, did not know the terms of the section 106 agreement, which
was going to be entered into between the council and the developers, or
alternatively if they did know the terms or the essential terms, those terms
were not disclosed to the applicants. It is submitted that if a section 106
agreement is going to be entered into and if planning permission is going to be
granted subject to such an agreement, then the terms of the agreement, or
certainly the essential elements of the agreement, should either be before the
committee when they first consider the matter or, if the matter is approved in
principle subject to a section 106 agreement, the terms should be made known to
the committee and to anybody who is objecting before the matter is finally
dealt with and disposed of by the committee.
We were
referred in the course of the argument to the standard form of advice which is
given to the committee as set out in the council’s own documents. There are
some standard procedures which are to be
document which is before us and was before the committee contains this advice:
Government
policy on planning gain is contained in the Department of the Environment’s
circular 16/91 and Planning Policy Guidance Note No 1, circular 16/91 is
discussed more fully in the Director of Law and Administrations’s report to
Development Services Committee dated 10th September 1991 . . .
and so on, and
then later — and this was a passage which was particularly stressed by Mr
Newberry:
Before resolving
to grant planning permission subject to a legal agreement, Members should
therefore satisfy themselves that the terms of the proposed agreement will meet
these tests . . .
Mr Newberry
referred us to passages in the Encyclopaedia of Planning Law and Practice and
in particular to a passage in vol 5 at para 4590, where it was said that the
public should be involved with planning matters and that planning obligations
should not be kept secret. So the gist of his argument was that there was an
obligation on the planning committee, before they reached a final conclusion in
this matter, to make sure that the essential terms of any section 106 agreement
were known to them and were disclosed to anybody in the position of the
applicants who were objecting to it.
Mr Newberry
also relied upon the fact that when the section 106 agreement was made, and the
agreement was made only, as I understand it, in relation to the second
application, that is the smaller one referring to 90-102 Newington Butts, it
contained provisions which he suggested were at variance with the original
approval which had been given by the planning committee. He referred us to the
terms of the agreement dated December 22 1993 which made provision as to how it
was intended that these buildings could be used during the vacations when the
students at the university were not themselves in residence. He drew our
attention in particular to the concluding words of para 2 of that agreement
which is in these terms:
. . . save
that during periods other than the normal term time of the South Bank
University (or such other period as the Developer, the University and the
Council shall agree) the Development may be occupied by . . .
and then it is
sufficient to refer to (c):
. . . persons
whose occupation of the Development has been arranged in association with any
course, conference, meeting or workshop whether or not of an educational
character) to be held at the South Bank University or such other higher
educational institution having its principal headquarters in any of the London
Boroughs specified in schedule 2.
Accordingly,
Mr Newberry said that, whereas it was provided or expected at the time when the
approval was given by the subcommittee
in residence in these buildings, and that is why the provision of only six
parking spaces was acceptable, the kind of people who were contemplated in para
2(c) might be people who would have a very much larger requirement for parking
spaces than students.
That brings
one to his final point. It has only recently, he says, come to light that
Newington Butts is going to be or has been designated as a ‘red route’. He drew
our attention to passages in the affidavits of Mr Boreham. He is an engineer,
who holds a diploma in traffic engineering and is a member of the Institute of
Highways and Transportation. It was his view that where you have roads which
are ‘red routes’ any parking restrictions which already exist will be much more
strictly enforced and that will of course increase the pressure on surrounding
roads, where people may be tempted to go and park instead.
That is, I
hope, an accurate summary of Mr Newberry’s arguments. I have had an opportunity
of considering these submissions. It seems to me that where one has got section
106 agreements which are, as has been aptly described, merely regulatory of how
the premises are to be occupied or used, it is not anticipated or required that
objectors should be entitled to see the terms of those agreements before they
are signed. There might be an extreme case where there was such a departure
from the original planning permission that an exception would have to be made,
but in the ordinary way it seems to me that the terms of the agreement are not
matters which have to be brought to the notice of the objectors. Furthermore,
to my mind, the two-stage process that Mr Newberry contemplated is quite
contrary to the administrative procedure followed in planning applications. It
seems to me that that is quite unnecessary and I see no need, certainly in a
case such as this, for a two-stage process.
One turns then
to the facts of this case to see whether it could fall within some exceptional
form of procedure. We have now had the advantage of seeing not only the evidence
of Mr Boreham and of course the original evidence put in on behalf of the
applicants, but also the affidavits put in on behalf of the local authority,
which deal not only with the question of the possible extra use in vacation
time, but also with the impact on this planning application of the designation
of Newington Butts as a red route. We have seen the affidavits of Mr Kent, Mr
Chambers and also Mr Jeremy Fraser, who is the leader of Southwark London
Borough Council.
Our attention
was drawn by Mr Malcolm Spence QC, on behalf of the borough, to the decision of
this court in Bolton Metropolitan Borough Council v Secretary of
State for the Environment (1990) 61 P&CR 343 where Glidewell LJ
enunciated certain principles which should be taken into account where one is
considering whether material matters have been overlooked in a planning
context. In para 6 of the principles which he enunciated he said:
If the judge
concludes that the matter was ‘fundamental to the decision’, or that it is
clear that there is a real possibility that the consideration of the matter
would have made a difference to the decision, he is thus enabled to hold that
the decision was not validly made.
— that is in
the context where something has not been taken into account that should have
been taken into account –
But if the
judge is uncertain whether the matter would have had this effect or was of such
importance in the decision-making process, then he does not have before him the
material necessary for him to conclude that the decision was invalid.
For my part, I
find it quite impossible to conclude that the decision would have been
different if the committee had had before them the agreement which was in fact
drawn up, or if their attention had been drawn specifically in the papers
before them to the fact that it was a designated red route. It is important
that in the affidavit of Mr Fraser he says that he knew well that this was a
red route and it is his opinion that other members of the committee, who were
obviously interested in traffic matters, would have had that well in mind as
well. Moreover, it was something which had been drawn to the attention of the
committee on at least two previous occasions in 1992. In these circumstances,
it seems to me that this is not a case where leave to appeal against the
decision of Macpherson J should be granted and I, for my part, would refuse it.
HOFFMANN LJ: I also agree.
WAITE LJ: I also agree.
Application
dismissed with costs, but an order for indemnity costs was refused.
