Judicial review — Planning permission — Contemporaneous appeal — Issue of principle — Suitability for housing — Whether competent for planning authority to grant planning permission where issue of principle before Secretary of State by an appeal
In June 1987 the second respondents, Link
Housing, applied to the first respondents, Edinburgh District Council, for
planning permission for housing development. The petitioners in this
application for judicial review objected to the proposed development. As the
application was not decided within the time-limits, the second respondents
appealed to the Secretary of State for Scotland. The reporter dismissed the
appeal on September 29 1988, inter alia because the proposed development
was incompatible with the use of the petitioner’s adjoining property. The
second respondents submitted a second application on December 8 1987 and an
amended plan was submitted after discussion with the first respondents’
officials in June or July 1988. Although the petitioners objected to this
second application, planning permission was granted by the first respondents on
September 19 1988.
The petitioners sought judicial review of
the decision of the first respondents to grant that permission on two grounds:
(1) that as the principle of housing on the land had been referred to the
Secretary of State for his determination by virtue of the appeal in relation to
the first application, it was incompetent for the first respondents to make a
decision until the issue of principle had been so determined; (2) it was
unreasonable for the first respondents to come to a decision before they had
the benefit of the views of the Secretary of State on the issue of principle.
Declarator granted.
1. It is not incompetent for a local
planning authority to deal with a planning application which relates to the
same issue as is before the Secretary of State on appeal. The legislation
imposes a duty on a planning authority to deal with a planning application
timeously: see p 17C. It cannot be inferred that a local planning authority
lacks competence to deal with an application because an issue of principle
remains to be decided by an appeal: see p 17G.
2. However, the action of the first
respondents was unreasonable in the Wednesbury sense. It was
unreasonable to grant planning permission knowing that the issue of principle
remained to be decided and would then be a material matter: see pp 16F-17B.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation
[1948] 1 KB 223; [1947] 2 All ER 680; (1947) 45 LGR 635, CA
Russell (Alexander) v Secretary of State for
Scotland 1984 SLT 81
Application for judicial review
This was an application for judicial
review of a decision of the respondents, the City of Edinburgh District
Council, to grant planning permission for development.
(instructed by J & A Hastie) appeared for the petitioners.
to the Edinburgh District Council) appeared for the first respondents.
appeared for the second respondents, Link Housing.
LORD DERVAIRD: In this case the petitioners,
James Aitken & Sons (Meat Producers) Ltd, seek judicial review of a
decision by Edinburgh District Council, as local planning authority, of
September 19 1988, whereby that body granted permission to the second
respondents, Link Housing, under the Town and Country Planning (Scotland) Act
1972 (‘the Act’), in respect of an application for such permission for housing
development on land adjoining that occupied by the petitioners at Lower London
Road, Edinburgh.
The circumstances giving rise to this
petition can be shortly stated. On June 11 1987 Link Housing, made an
application for such planning permission. The present petitioners objected
thereto. The district council did not arrive at any decision in relation to
that application within the period prescribed. Accordingly, Link exercised
their rights under section 34 of the Act to appeal to the Secretary of State
for Scotland. The Secretary of State appointed a reporter to determine the
matter. The appeal proceeded by way of written submissions, but there was a
site inspection, accompanied by the parties, by that reporter on or about May
24 1988. On September 29 1988 the reporter made his decision whereby he
dismissed the appeal. Inter alia he appears to have held that
development of the appeal site for housing, albeit in accord with the local
plan, was not compatible with the successful (and increasing) operations of the
nearby premises by the petitioners.
After Link had intimated that appeal,
they lodged on or about December 8 1987, with the district council, a further
planning application. That was described by them as a ‘duplicate application’
(and no further charge was payable to the local authority in respect of it). In
fact, a series of discussions then took place involving officials of the
district council and representatives of Link, and in June or July 1988 Link
lodged an amended plan in respect of that application with the district
council. That plan apparently took account of one objection by the petitioners,
which related to the closure of a road known as Taylor Place. The petitioners
objected to this application also. Edinburgh District Council proceeded to
consider that application and at a meeting on September 19 1988 granted
permission in respect thereof, just 10 days before the reporter made his
decision on the earlier application to dismiss the appeal.
For the petitioners two grounds for
review were advanced. In the first place it was argued that as the principle of
housing in respect of the land in question had been referred to the Secretary
of State for his determination by virtue of the appeal in relation to the first
application, it was incompetent until such time as the Secretary of State had
come to a decision on that appeal for any valid decision to be taken by the
local planning authority on that issue of principle. The issue of principle, it
was said, could not be up for decision by both the Secretary of State and
Edinburgh District Council at the same time. The appropriate analogy, it was
suggested, was with appeals in litigation. When a matter was under appeal, it
was generally incompetent for the body whose decision was under appeal to deal further
(save in limited ancillary ways) with the issue taken to appeal so long as that
matter was before the superior court. So too, it was argued, was the local
authority debarred from a consideration or determination of the self-same issue
of principle as had been referred to the Secretary of State by virtue of the
appeal.
The respondents, Edinburgh District
Council and Link Housing, both contended that there was nothing in the
statutory provisions which prevented the local planning authority from dealing
with a second application in respect
notwithstanding that the first such application or indeed several such
applications were under appeal. Indeed, looking to the terms of the Act it was
said: (1) that there was power for a party to submit any number of applications
irrespective of those which had already been submitted; (2) that upon receipt
of any such application the local planning authority fell under a statutory
duty to deal with it within the time specified in the statute. This, it was
said, demonstrated that there was nothing incompetent about the council’s
considering the second application notwithstanding that the fate of the first
had not yet been determined by the appeal process.
In the second place the petitioners
contended that if it was competent for Edinburgh District Council to come to a
decision upon the application here, notwithstanding that the issue of principle
was before the Secretary of State by virtue of the appeal in relation to the
first application, it was plainly unreasonable for the local authority to come
to a view on that matter in the present case before they could have the benefit
of the views of the Secretary of State on the very issue of principle involved.
It was the duty of the local planning authority in regard to any planning
application to have regard to all material considerations. By acting as they
did they deprived themselves of access to what would have been, on any view, a
very material consideration, namely the view of the Secretary of State in
relation to that issue of principle. There was no suggestion in the present
case that there had been any alteration in circumstances relating to the
principle of housing in the locality nor any other ground put forward which
would suggest that circumstances had so altered as to affect the views which
would be appropriate. So to act as they had done in the circumstances of the
present case was to act in a way that no reasonable authority would have acted
and to render the decision one which should be quashed.
For the first respondents it was
contended that Edinburgh District Council did have regard to a material
consideration, namely that the issue of principle was before the Secretary of
State for his consideration. For the second respondent it was urged that it was
open to the appellants at any time to withdraw their appeal and that this
factor must have been known to the planning authority in their consideration of
the second application.
I propose to deal with these grounds in
the reverse order. In my opinion it is clear that the action of Edinburgh
District Council in proceeding to dispose of the second application while the
appeal in relation to the first application was as yet undecided, was
unreasonable in the sense in which that word is used in the Wednesbury
case (Associated Provincial Picture Houses Ltd v Wednesbury
Corporation [1948] 1 KB 223). To say that the first respondents had regard
to the material consideration that the matter was before the Secretary of State
on appeal is, in my opinion, a travesty. That the appeal on the first
application was before the Secretary of State could only be a material factor
in relation to the second if the outcome of that appeal was material to the
deliberations of the district council in relation to the application before them.
Otherwise it had and could have no materiality in relation to this matter at
all. In these circumstances, to come to a determination in what I was invited
to hold was the knowledge that a material matter was not yet available for
their consideration which would focus on the issue of principle raised by both
applications (see Alexander Russell v Secretary of State for Scotland
1984 SLT 81) was, in my opinion, to act in a manner in which no reasonable
authority charged with the duties under the planning Acts would have acted. As
to the argument that it was open to the appellants in relation to that appeal
to withdraw it: (1) having regard to the terms of section 33 of 1972 Act and
the
question whether at his own hand an appellant may withdraw any such appeal once
it has been launched; (2) in any event in the present case they did not, and
there was no basis upon which the local planning authority could have proceeded
to assume that any such thing would happen. Unless and until the appeal was, in
fact, abandoned, the only reasonable basis upon which the local planning
authority could proceed was that the first application would be subject to a
determination by the Secretary of State on appeal. I am accordingly of the
opinion that for this reason the petition succeeds and the petitioner is
entitled to the remedies which they seek.
The first question raises a fundamental
issue as to the powers of a local planning authority when an appeal has been
taken against a planning decision. I have come to the view that the attack on
this ground is not well founded. In particular it does not appear to me that it
is incompetent for a local planning authority to deal with a second application
which relates to the same issue as is before the Secretary of State on appeal.
The statutory provisions do not expressly so provide and accordingly the
incompetence alleged would have to be found by necessary implication. But the
statute, far from imposing any such necessary implication, imposes a duty on
the local planning authority upon receipt of any planning application to deal
with that application and they are under an implied duty to deal with the
application timeously because, if they fail to deal with it within the
time-limits which are prescribed by development orders, a right of appeal
arises under section 34 of the Act to the person who has made such an
application. It is true that the obligations of the local authority which may
be said to arise under section 26 of the Act are said to be subject to the
provisions of sections 23 to 25 and to the following provisions of the Act, but
I take nothing from that statutory provision to the effect that the duty of the
authority is in some way suspended because, in relation to some other
application, an appeal may have been taken. In my view, the provisions to which
I was referred do not give rise to a necessary inference that the local
planning authority, which it was conceded must receive the application, are
thereafter lacking in power to come to any determination on the issue of
principle, and the issue of principle is raised by such an application by
reason that an earlier application which has been made in relation to that area
of ground raises the same issue and that that earlier application is under
appeal in respect of a refusal or a deemed refusal. Whether the local authority
would be acting reasonably in respect of any such a determination in the
particular circumstances of the particular case is quite another matter. But
whatever the right view in relation to that, I do not consider that it is
incompetent for a local planning authority to proceed to determine an
application which raises an issue of principle in relation to a piece of ground
notwithstanding that some prior application raising the same issue of principle
has been made the subject of an appeal to the Secretary of State for Scotland.
Being of the view that the action of the
local authority in the present case in proceeding to determine the second
application without waiting for the decision by the Secretary of State upon the
issue of principle which was raised was not one which a reasonable local
authority would have taken, I shall grant a declarator that the purported
planning permission granted on September 19 1988 is ultra vires and of
no effect. I shall also grant suspension of that purported planning permission.
Declarator granted with costs.
