Mr Justice Wyn Williams:
Introduction
1. On 7 February 2008 one David Jones, a principal planning officer employed by the Defendant, granted planning permission to the Interested Party for the demolition of a workshop at 10 Wide Lane, Morley and the erection upon site of 12 flats. In these proceedings the Claimants allege that Mr Jones was not authorised to grant permission since no valid scheme of delegation existed at the time the permission was granted. In the Statement of Facts and Grounds accompanying the Claim Form the issue is identified as Ground 2.
2. On 9 December 2009 I handed down a judgment in which I concluded that at the material time the Defendant had a valid scheme for delegating to its officers decisions such as determining planning applications. Accordingly, I declined to quash the planning permission on the basis of Ground 2. However, the Claimants have always relied upon other grounds in support of their claim that the planning permission should be quashed. This judgment considers the other grounds relied upon by the Claimant (Grounds 1, 3 and 4). Before considering each ground, in turn, however, I propose to set out a number of uncontroversial but relevant matters.
3. The Interested Party submitted its application for planning permission on or about 8 November 2007. The application site was identified as
4. The scheme of delegation which was in force in late 2007 and early 2008 delegated the determination of all planning applications to the Chief Planning Officer. In turn, the Chief Planning Officer was empowered to delegate to principal planning officers. However the scheme of delegation provided for ‘Exceptions’ in the following terms:-
“The Chief Planning Officer is not authorised to discharge the following functions:
Town and Country Planning and Development Control
(a) The determination of applications following a written request to the Chief Planning Services and Development Officer by
· A Ward Member concerning an application within his/her ward
· A Chair of an Area Committee, concerning an application within his/her Area Committee area
that an application be referred to the relevant Plans Panel;
(b) the determination of applications for development that would constitute a significant departure from the Development Plan, including a significant departure from any Local Development Framework currently in force;
(c) the determination of applications for development that would be materially different from any supplementary planning guidance or planning brief approved by or on behalf of the Council;
(d) the determination of applications for major development which would have significant impact on local communities;
(e) the approval of applications, where approval would reverse a previous decision taken by Plans Panel;
(f) the approval of applications, where approval would conflict with an objection raised by statutory technical consultees;
(g) where the Chief Planning Officer considers that the application should be referred to the relevant Plans Panel for determination because of the significance, impact or sensitivity of the proposal;
(h) the determination of applications submitted in a personal capacity by or on behalf of Members, the Chief Executive, Deputy Chief Executive, Directors, Chief Officers or any Officer who carries out development control functions.”
A footnote to the exception at (a) specified that the application in writing had to be made within 21 days of the date of the notification of the application and contain reasons for the request based upon material planning considerations.
“Significant” in the phrase “significant departure” in sub-paragraph (b) was to
be understood as in the Town and Country Planning …(Departures) Directions
1999.
The scheme defined major development within sub-paragraph (d) as including
“Residential development involving the erection of 10 or more dwellings….”
In the event that the Chief Planning Officer was not authorised to discharge the functions specified in the Exceptions the function would ordinarily be discharged by a Plans Panel. Such a Panel was constituted by members of the Defendant. It is unnecessary to describe the constitution of Plans Panels in more detail.
The Claimants’ Grounds of Challenge
Ground 1
5. The Claimants contend that the decision to grant planning permission to the Interested Party was reached in a manner which was procedurally unfair. It is to be noted that it is not alleged that the decision was reached in a manner which was unfair to all those having an interest in the process. The unfairness identified is unfairness to the Claimants and only the Claimants. Nonetheless, submits
6. In order to understand this ground of challenge it is necessary to recount the history of events as they unfolded following the submission of the planning application on 8 November 2007.
7. When a planning application is received by the Defendant it is allocated to a case officer. The case officer to whom this application was allocated was
8. It is clear that in the weeks immediately following the receipt of the application
9. The application generated one letter of support – from Morley Town Council – and four letters of objection. The four letters of objection were received by the Defendant just before Christmas 2007. One of the letters of objection was from the Claimants. The Second Claimant wrote a long and detailed letter of objection both on his own behalf and on behalf of the First Claimant. The letter dealt exclusively with the planning merits of the application.
10. Neither the Claimants nor the other objectors suggested in their letters of objection that the application should be considered by a Plans Panel as opposed to an officer of the Defendant. Indeed, the letters did not mention the procedure by which the application was to be determined.
11. On 18 January 2008 the Second Claimant sent an email to
“Need to look at it in detail – hopefully back end of next week with workload priorities at present. I have got your comments so will discuss all with my Principal Planner next week.”
12. On 28 January 2008 the Second Claimant emailed
“Can you just tell me whether this is going to be a delegated decision or whether it is already decided that it will go to Panel if it proceeds?”
“Mark – will endeavour to confirm this week.”
13. On 5 February 2008 Councillor Tom Leadley wrote to the Chief Planning and Development Officer of the Defendant with copies to others including
“Following a request from a neighbour, I ask that the above application should be decided at Plans Panel East to allow the Panel to judge challenges from a neighbour’s representative to the likely advice from officers, in particular about the height and massing of the proposed building, the proposed highway access, and the loss of employment land.
Morley Town Council Planning Committee was reasonably content with the principle of the proposal, and from talking with
14. That letter is date stamped as received on 6 February 2008. However, the Defendant asserts that no officer with knowledge of the planning application saw the letter before the decision to grant planning permission was made on 7 February 2008.
15. In the afternoon of 7 February 2008
16. On the same date,
17. According to
18. The Defendant also relies upon the evidence of
“On receipt of Archbold’s fresh application, it was identified as being one that would on its face be a delegated decision (this is the normal practice save in a case where it is known from the outset that it will not be…… that does not mean that it will be decided under delegated authority; rather, and in accordance with usual practice, its classification is kept under review in case it becomes one which needs to be referred (or it is decided to refer) to a Panel. Officers are acutely aware of the exceptions which require a matter to be referred to a Panel and of the considerations which may mean that a matter is so referred….. unless reclassified beforehand. However, the matter of whether or not to exercise the delegated authority would not actually be decided until the application was put up by the officer to his principal officer (see further below, para. 24).”
Paragraph 24 is in the following terms.
“I am advised by
19. I have to say that I find the last sentence of this paragraph wholly unconvincing. Nothing in
20. It is common ground that a telephone conversation took place between
21. It is never easy to determine contested factual issues by reference to witness statements in judicial review proceedings. It seems to me, however, that Councillor Leadley’s statement rings true. It is much more likely than not, in my judgment, that it was his telephone call with
22. Despite the history set out above and my conclusions on the facts where they are disputed, I am not persuaded that the planning permission should be quashed on the grounds of procedural unfairness. The Claimants, themselves, did not at any time make representations to the Defendant to the effect that the planning application should be determined by a Panel as opposed to an officer. That must be an important factor when considering whether the Claimants were treated unfairly. In my judgment, the Defendant was entitled to proceed on the basis that the Second Claimant’s emails of 18 January 2008 and 28 January 2008 were requests for information; the Defendant did not act unfairly, in my judgment, in failing to treat the emails as a request that the application be determined by a Panel and, thereafter, considering that request.
23.
24. I do not consider that the decision of Sir Michael Harrison in R(Norton) v
25. Even if I am wrong in my conclusion about whether there was procedural unfairness, this is one of those comparatively rare cases in which it would be proper to refuse relief. Assuming, as I must for this ground, that Mr Jones was entitled to determine the application there is no realistic prospect, in my judgment, that he would have referred the application to a Panel had the Second Claimant’s emails been answered accurately. I accept that if an accurate answer had been provided the likelihood is that Councillor Leadley would have been involved earlier than 5 February; he would have written his letter to the Defendant earlier in time. I also accept that the letter would have been considered notwithstanding that it would have been written more than 21 days after receipt of the application for planning permission and by a member who was not the ward member (see the exception contained in sub-paragraph (a) set out at paragraph 4 above).
Grounds 3 and 4
26. The Claimants submit that it was not open to
27. During the course of the submissions there was a detailed debate about the correct legal approach which should be followed when it is alleged that an officer has acted beyond the scope of the power delegated to him. The proper approach is important when, as here, there is delegation of a class of decisions under a scheme of delegation but exceptions to the delegated power the applicability of which depend either wholly or substantially upon the judgment of the officer who is asked to deal with the application.
28. In R (Carlton-Conway) v
“1.9 Where approval of development is recommended and a written objection or objections have been received, except where the proposals do not conflict with agreed policies, standards and guidelines;”
It was common ground that the planning officer was not authorised to grant
planning permission unless the application did not conflict with agreed policies
standards and guidelines.
29. During the course of giving the main judgment of the court Pill LJ expressed
himself in the following way:-
“19 The issue as stated by
20 On an analysis of the material, it is submitted, that there is no conflict between the application and the relevant policies. Such analysis has been conducted in the lengthy post-decision report to which I have referred. It is not enough, submits
21 Paragraph 1.9 is, in my judgment, to be construed against a background that it is plainly the policy of the relevant statutory material and of the circulars that there should be public participation in planning decisions, including participation by those who are affected by them. Where powers are delegated to a single individual, the scope of those powers must be considered carefully. It is important that a planning officer purporting to exercise delegated powers should give careful and genuine consideration to the question whether the particular application with which he is concerned comes within the delegation. The purpose of the exception in para 1.9, where an objection has been made, is that cases may be dealt with where the relevant policies are clear and the relevant facts are clear. The policies can be applied in a straightforward manner to the facts of the particular case. The exception can apply, in my judgment, only where there is clarity as to the facts and as to the policies.
22 In my judgment, on neither count, was the situation clear in this case…..
23…..
24 In my judgment, this was not the type of case that the exception in para 1.9 contemplated. It is not for the court to make planning judgments, as
25 Public policy requires, in my judgment, that the planning officer should be circumspect in exercising powers delegated in the terms they were in this case. When there are real issues as to the meaning of planning policies, as to their application to the facts of the case, reference to the appropriate committee is required.”
30. In R (Springhall) v
“4. Where officers recommend a decision contrary to the submitted written views of interested third parties or consultees, except when ….. (c) applications are in accordance with any supplementary planning guidance and third parties expressing a view do not indicate a wish to address the planning committee.”
31. The application for planning permission was approved by an officer of the Respondent, purportedly under the exception in paragraph 4(c). It was agreed that the Claimant had not indicated a wish to address the planning committee. Richards J (as he then was) dismissed the claim for an order quashing the planning permission. He held that the planning officer had been reasonably entitled to conclude that the proposal accorded with the supplementary planning guidance and that such a conclusion was itself a matter of planning judgment not susceptible to interference by the court save on Wednesbury grounds. During the course of argument in the Court of Appeal an issue arose as to the width of the ratio of the court’s judgment in Carlton-Conway. The Claimant submitted i) that a planning officer considering whether to exercise delegated power on the making of a planning decision should exercise great caution before doing so in a case where the relevant planning policies and the facts are not clear; and ii) that he should not exercise delegated powers unless he was sure in the light of the relevant policies and facts that he could properly do so; in particular, where there was a policy presumption against the planning proposal, he should not consider whether, as a matter of planning judgment, it was rebutted. Auld LJ dealt with these issues in the following paragraphs of his judgment.
“[20] Richards J, in his judgment, considered the scheme of delegation and the decision making process in the present case and compared them with those in Carlton-Conway’s case. He held that the planning officer was reasonably entitled to conclude that the proposal accorded with the supplementary guidance and that such a conclusion was itself a matter of planning judgment not susceptible to interference by the court, save on Wednesbury grounds…..
[21] In so holding, Richards J found that had regard to the following distinctions between Carlton-Conway’s case and this case;
(1) In Carlton-Conway’s case, the relevant policy had to be agreed and there was real doubt as to a material term of it, whereas here the applicable policy and its terms were clear;
(2) In Carlton-Conway’s case, there was no evidence that the officer had genuinely and carefully considered at the time of deciding the matter whether it was delegable to him, whereas here the officer’s contemporaneous report shows that he did consider that question at the material time;
(3) In Carlton-Conway’s case, there was no contemporaneous evidence of the officer’s approach or reason for his decision, whereas here the officer accompanied the decision with a reasoned report;
(4) In Carlton-Conway’s case, there was general lack of clarity as to the applicable policies and the facts and as to why the officer considered that the former were complied with, whereas here there was no such doubt.
As to Pill LJ’s observation at [25] of his judgment in Carlton-Conway’s case of the need for circumspection in the exercise of powers ‘delegated in the terms they were in….[that] case’, Richards J commented (at [30]);
“What is said in Carlton-Conway’s case at [25] must also be read in the context of that case. It is concerned with the exercise of powers “delegated in the terms they were in this case”; that is with a specific instrument of delegation, the relevant part of which refers to the absence of conflict with agreed policies. That is the context in which it is said that reference to the planning committee was required where there were real issues as to the meaning of the planning policies and their application to the facts. In my judgment, the passage is not to be taken as laying down any general principle that if there is a real issue about the meaning or application of a policy, it is simply unlawful to exercise delegated powers of decision making and the matter must be referred to a planning committee.”
………………
[28] In Carlton-Conway’s case Pill LJ considered that the only rational decision for the officer in that case would have been to decline to exercise delegated jurisdiction and to refer the matter to the planning committee. Richards J held, rightly in my view, that that decision does not compel the same result in the present case where there is no such uncertainty about the applicable planning policies and the facts to which they had to be applied and where it is plain the officer had both well in mind in deciding whether to decide the matter for himself and to grant approval.
[29]
[30] Here, …., the policies in play are clear….. Accordingly, I reject
[31]….
[32] In my view, it is for local planning authorities to determine the policy or basis of their scheme of delegation, not for courts to gloss them by imposing fetters on them according to the court’s perception of how the decision making should be allocated between the Council committee and the officer, e.g. according to whether there is an issue as to policy or fact, simplicity/complexity, seriousness or sensitivity or general public importance……
[33] The question of interpretation and application of local planning policies, including the effect to be given to any presumption in them, on the facts of each case goes primarily to the decision whether or not to grant planning permission, not to some threshold question whether an officer should decide for himself whether to exercise delegated power to grant or refuse permission. If such grant or refusal is found to have been wrong in law because of an incorrect interpretation by the officer of the policy and/or because of a Wednesbury misapplication of it to the facts, that may or may not also taint the officer’s decision to exercise delegated jurisdiction, but the planning decision, will in any event – as in Carlton-Conway’s case – be susceptible to judicial review on conventional grounds. But, if and to the extent that Pill LJ contemplated at [25] that some special, modified Wednesbury rule should apply to the question of vires of an officer purportedly exercising such jurisdiction in planning matters, as distinct from a question of conventional Wednesbury irrationality or other illegality of the decision itself, I respectfully disagree. In particular, I endorse the observations of Richards J in paragraph [30] of his judgment (see [21], above that Pill LJ’s judgment should not be read as laying down any general principle that where there is any real issue about the meaning or application of a planning policy, it is unlawful for an officer to exercise delegated powers of decision making.
[34] Whilst I am conscious of the important interest of public participation in planning decisions, to which Pill LJ rightly referred in para [21] of his judgment, there is also a strong public interest in the efficient and timely administration of planning control. Parliament, by section 101 of the 1972 Act, has left to local planning authorities how they may discharge their decision-making role in planning matters. Given their extensive delegation of such a role, it would be contrary to both public and private interests and cause much dismay and expense to subject the system to what could routinely develop into a two-stage challenge of officer decisions. If an officer, assuming delegated powers for the purpose, demonstrates by his conduct or decision that his planning decision is irrational or otherwise unlawful, whether or not it impinges on his decision to deal with the matter himself, the matter is, in any event, remediable by a single judicial review challenge.
[35] Accordingly, I am of the view that Pill LJ’s concern, as expressed by him in paras [24] and [25] of his judgment, while valid in the circumstances of the case before him, in the sense that they went to the legality and rationality of the officer’s decisions both not to refer the matter to the planning committee and to grant planning permission, should not be taken as a general rule that a planning officer should, as a matter of course, decline to exercise delegated powers available to him only where relevant policies and facts are clear. Equally, I reject
32 I have set out detailed extracts from Carlton-Conway and Springhall since it is important to understand the full reasoning contained within the judgments of Pill LJ and Auld LJ and, for that matter, Richards J (as he then was). In my judgment, there is no conflict in principle between the decision in Carlton-Conway and Springhall. What the decision in Springhall does is to ensure that the ratio in Carlton-Conway is not misunderstood. It seems to me that the following strands emerge from the two decisions. First, when the issue of whether or not the power to grant planning permission has been delegated to a planning officer arises under a scheme of delegation and the resolution of that issue is dependant upon the exercise of planning judgment a decision by the officer to exercise the delegated power and grant planning permission may be impugned upon the ground that his decision is irrational or unreasonable. Second, in assessing whether such a decision is irrational or unreasonable the court will approach its task in exactly the same way as if it was simply being asked to quash the planning permission on the ground that the decision to grant permission was irrational or unreasonable. Third, in most cases where the issue about whether the power to grant planning permission has been delegated depends upon the exercise of planning judgment there will be no need for a planning officer to adopt a formalised two-stage approach when determining whether he is authorised to grant permission and, if so, whether permission should be granted. That is because the factors relevant to both issues will normally be closely interrelated if not identical. However, fourth, there may be occasions when an officer could properly form the view that planning permission for a proposal should be granted but yet act irrationally or unreasonably if he also concludes that he is authorised to grant the permission. Carlton- Conway is one such case. Consequently, officers should remain alive to this possibility.
33 In the present case, as I have said, the decision to grant planning permission was made by
“The proposal is a well designed and appropriately set development of flats which will enhance the character of the adjacent Conservation Area. The materials now proposed and as revised help to do this but the existing proposed site context also adds to the scheme’s acceptability in this matter. The scheme meets all highway safety considerations and all other technical matters have been met.”
34.
35 It follows, in my judgment, that the question for me is whether
36 At first blush
37 That said, I am satisfied that the Claimants have demonstrated that it was unreasonable or irrational for planning permission to be granted in this case. I do not propose to deal with each argument presented by the Claimants in support of this contention. No useful purpose would be served by such an approach given that I have reached clear conclusions upon two of the main points taken by the Claimants in support of their contention.
38 As I have said,
“A condition has been added to reduce the size of the amenity space specifically dedicated to flat 1 (flat A) to expand the amount afforded to the whole development – the proposals provide for 26% space in comparison to the floor space of the flats – this is acceptable to the advised 25% set out in SPG 13. The site is also in good walking distance of
The amenity space is set against the elevation of the Kalon Buildings; the area is considered acceptable given the blank side façade this will face.
Despite this, under policies N2 and N4 [of the Development Plan] and the guidance in SPG 4, provision for improvements to local green-space are required as a development of over 10 units. The previous application outlined a requirement for provision broken down under N2.1, N2.2 and N2.3 together with equipped play to be £24,372. The provision of this has been conditioned.”
The condition in question – condition 2 – is in the following terms:-
“No development shall begin until a scheme for provision of an additional or improved green space, on or off site, to meet the needs of the development has been submitted to and approved in writing by the local planning authority. The scheme shall include a timetable for the provision to be made and shall be carried out in accordance with the approved details.”
39
40. In his witness statement
41. Policy N4 of the Development Plan makes it clear that provision of an appropriate amount of green space is required in connection with residential development proposals. However, Policy N4 (ii) permits the Defendant to choose between requiring provision of land or payment of a sum of money. There is little doubt that it would have been open to the Defendant to enter into an agreement with the Interested Party for payment of an appropriate sum of money in this case. Generally speaking such an agreement would have been executed before or at the time of the grant of planning permission.
42. That is not what has occurred in this case. To repeat, the planning permission was made subject to the condition to which I have referred; the condition says nothing about the ability of the recipient of the planning permission to fulfil the condition by making a payment of a sum of money as opposed to providing additional green space.
43. When this issue was considered in oral submissions
44. It seems to me that
45. I do not have to resolve this knotty issue. Indeed I would not think it appropriate to resolve it in proceedings where the legality of the condition is not put in issue, expressly. What is clear to me, however, is that Mr Greatorex is correct when he submits that no reasonable decision-maker would have granted planning permission subject to such a condition (relating as it does to one of the main planning issues for consideration) without a clear and reasoned justification for its imposition and a careful appraisal of how it was intended that it should be fulfilled. So far as I can judge from the papers before me, no proper appraisal was undertaken of the legality of the condition or whether it would or could achieve what it was intended to achieve at any time before the planning permission was granted. Indeed, it is of some importance that the notice by which the grant of planning permission was conveyed to the Interested Party expressly justifies the imposition of the condition as being to ensure the “provision of greenspace.” There is no suggestion that what was or may have been intended was that the Interested Party should pay over a sum of money.
46. I stress that I am not reaching a conclusion that the condition in question was invalid. I confine myself to concluding that it was unreasonable or irrational to grant planning permission subject to such a condition.
47. Drainage matters and contaminated land were also identified by
“The applicant has not provided any information relating to land contamination issues in support of the above application.
The applicant has not demonstrated that the site would be suitable for the proposed use. As the end use is residential and therefore sensitive, we require the submission of at least a Phase I (desk study) report to support the application. Depending on the findings of the Phase I report, it may be appropriate for the applicant to also submit a Phase II (site investigation) report and remediation statement. For example, if a site has previously been used as a petrol filling station or gas works (i.e. a previous use that is potentially contaminating) we would require more information to be provided at the application stage.
……
I would recommend that you obtain the information outlined above prior to granting permission….”
48. Evidently the Interested Party obtained a Phase I report. On 28 November 2007 Ms Bartlett recommended that the Interested Party be asked for a Phase II report and, if necessary, a remediation statement in support of the planning application.
49. There is no evidence that
“I was writing up this application for approval and had (perhaps mistakenly) thought that there were no objections from
Can I condition a Phase II submission?”
The same day
50. The Defendant has offered no explanation why the application had to be determined “by Thursday.” I assume that it was on that day that the time limit for determining the application was due to expire. Nonetheless on the strength of this exchange the planning permission granted was made subject to no less than 6 conditions relating to the topic of land contamination.
51. The delegation report deals with this issue very shortly. Mr Smith wrote:-
“Conditions have been placed to deal with the submission of further phase II studies and remediation of the site. This has been conditioned as agreed by the contaminated land consultation.”
This was a very cryptic summary of what had transpired.
52. In my judgment, it was unreasonable for planning permission to be granted when so many issues relating to potential land contamination were unresolved. I appreciate that solutions can usually be found to overcome problems associated with land contamination. It does seem to me, however, that a reasonable local planning authority would have demanded much more information from the Interested Party before deciding to grant permission rather than grant permission subject to conditions when the extent of any potential problem was simply unknown. To repeat, land contamination was not identified as some peripheral issue in this case; it was identified as one of the main issues for consideration.
53. In the light of the conclusions reached in the preceding paragraphs I propose to quash the planning permission dated 7 February 2008 which was granted by the Defendant to the Interested Party. I do so because I am satisfied that no reasonable planning authority would have granted planning permission subject to the conditions which I have identified. For the avoidance of doubt the conditions in question are conditions 2 and 14 to 20 inclusive. No arguments were advanced to me in oral submissions why I should not take that course if I concluded that the decision to grant planning permission was unreasonable or irrational. I appreciate that in certain circumstances it may be possible to sever conditions leaving the planning permission extant. That would be wholly inappropriate in this case where the conditions relate to matters which the Defendant regards as central to whether or not planning permission should be granted.
54. I propose to hand down this judgment in
