Mr Justice Wyn Williams:
Introduction
- 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.
- 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.
- The Interested Party submitted its application for planning permission on or about 8 November 2007. The application site was identified as 10 Wide Lane Morley and the application sought permission for the demolition of the building which then existed at 10 Wide Lane and its replacement with flats. 10 Wide Lane is situated near the centre of Morley and near a designated conservation area.
- 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
- 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 Mr Greatorex, the planning permission should be quashed.
- 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.
- 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 Mr Richard Smith. A preliminary decision is then taken upon whether the application is one which falls to be determined by an officer. In this case the evidence adduced by the Defendant asserts, positively, that it was determined, from the outset, that the application should be determined by an officer (see paragraph 4 witness statement of Mr David Jones dated 24 October 2008).
- It is clear that in the weeks immediately following the receipt of the application Mr Smith engaged in a process of consultation with a number of bodies. They included a statutory consultee, Yorkshire Water, and other bodies which were likely to have views, one way or the other, upon the merits of the application.
- 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.
- 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.
- On 18 January 2008 the Second Claimant sent an email to Mr Smith in which he inquired whether the application would be decided by an officer of the Council or by a Plans Panel. Mr Smith replied promptly in the following terms:-
"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."
- On 28 January 2008 the Second Claimant emailed Mr Smith again about whether or not the decision in relation to the planning application would be made by an officer or a Panel. It is worth quoting the Second Claimant's words in full.
"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?"
Mr Smith's response (by email dated 29 January 2008) was as follows:
"Mark – will endeavour to confirm this week."
- On 5 February 2008 Councillor Tom Leadley wrote to the Chief Planning and Development Officer of the Defendant with copies to others including Mr Smith. The letter reads:-
"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 Mr Smith I understand that there have been modifications to introduce real sandstone rather than artstone, and to have better use of the open land within the site to give more green space, so answering two of the Committee's detailed concerns."
- 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.
- In the afternoon of 7 February 2008 Mr Smith sent an email to the Second Claimant in which he informed him that "we have delegated decision on this application, which has been put through for approval today."
- On the same date, Mr Smith presented a document entitled Delegation Report to Mr David Jones. The report is a detailed and reasoned document setting out the basis upon which Mr Smith had decided that it was appropriate to grant planning permission. Mr Jones accepted the recommendation made by Mr Smith. The decision to grant planning permission was made on the same day. The decision notice is dated 7 February 2008 and signed by Mr Crabtree, the Chief Planning Officer. As is common ground, however, it was Mr Jones who made the decision to grant planning permission.
- According to Mr Jones' witness statement the application was always treated as one which would be the subject of a delegated decision (see paragraph 8 above). There is nothing in his witness statement which suggests that there was any doubt upon the point. That being so, the contents of Mr Smith's emails can only be described as misleading. The Second Claimant's emails to Mr Smith asked straightforward questions; they deserved straightforward answers particularly given the evidence from Mr Jones. Yet the Second Claimant was not told that the application would be determined by an officer until the day the decision was made.
- The Defendant also relies upon the evidence of Mr Crabtree who has been its Chief Planning Officer since January 2007. In paragraph 21 of his witness statement dated 4 June 2009 Mr Crabtree says:-
"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 Mr Smith that on February 5 2008 Councillor Leadley telephoned him to discuss this application and at no time did he ask for it to be referred to the Development Control Plans Panel (East). The purpose of the call was to discuss the issues raised by the Town Council….. In addition, it is evident that Mr Smith exchanged a small number of emails with Mr Snee, in which Mr Snee wanted to know whether or not the decision would be reached by delegated authority and Mr Smith indicated that this was yet to be decided. This is correct: Mr Smith did not have delegated authority to determine the application or, therefore, to determine whether or not it would be decided under delegated authority. It may be, with hindsight, that he might have spelled out that this was not answering the question; equally he may well have thought this was clear."
- I have to say that I find the last sentence of this paragraph wholly unconvincing. Nothing in Mr Crabtree's evidence persuades me that the Second Claimant could not have been told, in reasonably precise terms, what the Defendant's practice was in relation to determining applications such as the one in which the Second Claimant was interested.
- It is common ground that a telephone conversation took place between Mr Smith and Councillor Leadley on 5 February 2007. Whereas, however, Mr Crabtree asserts that the issue of whether the application would be determined under delegated powers was not discussed in that conversation Councillor Leadley positively asserts that Mr Smith told him that officers intended to use delegated powers to determine the application. Councillor Leadley makes that assertion in his witness statement dated 16 June 2009. It is also of some note that the Councillor says that the telephone call to Mr Smith was precipitated by the Second Claimant; the Second Claimant had informed Councillor Leadley that he had been trying, unsuccessfully, to ascertain whether the application would be determined by an officer or a Panel and it was in the light of this unsuccessful attempt that the Councillor phoned Mr Smith. Further, Councillor Leadley asserts in his witness statement that having been informed by Mr Smith that an officer would determine the application he immediately wrote the letter of 5 February 2008 to which I have referred. He did so at the request of the Second Claimant.
- 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 Mr Smith on 5 February 2008 which provoked his letter to the Defendant and that the letter was written because Mr Smith had indicated that the application was to be determined by an officer.
- 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.
- Mr Greatorex submits that the Defendant should have provided accurate answers to the Second Claimant's emails; no doubt that is true as a matter of good administrative practice. That does not mean, however, that the Defendant was under a legal obligation to provide accurate answers with the consequence that if it did not any planning permission it granted should be quashed on the grounds of unfairness. The Claimants had no right to make representations about whether the application should be dealt with by a Panel as opposed to an officer. No expectation had been raised by the Defendant to the effect that the decision would be made by a Panel - quite the contrary. At any time the Claimants could have made representations about how the application should be determined or ask Councillor Leadley to make representations as he did at a very late stage. Essentially the issue of whether the application was one which should be determined by an officer or by a Panel was one for the Defendant to determine in accordance with its own criteria. Assuming, for the purpose of ground 1, that an officer of the Defendant was entitled to determine the application I can see no basis for concluding that it should be quashed on the grounds of procedural unfairness.
- I do not consider that the decision of Sir Michael Harrison in R(Norton) v London Borough of Lambeth [2007] EWHC 376 (Admin) assists the Claimants. The facts in that case are clearly very different and the whole basis of the claim that the objectors had been treated unfairly in that case rested squarely on the footing that a legitimate expectation had been created in the minds of the objectors that the planning application would be considered by members as opposed to an officer of the council. It simply cannot be demonstrated in this case that any legitimate expectation arose in the minds of the Claimants that the application would be determined by a Panel.
- 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). Mr Crabtree appears to leave open that possibility in his witness statement. However, Councillor Leadley's letter was short and lacking in detail. It acknowledged, as it had to, that Morley Town Council had actually supported the proposal. The reality is that the proposal provoked little opposition. Accordingly, it seems to me that the overwhelming likelihood is that Mr Jones's consideration of whether or not to refer the application to a Panel would have depended upon whether, as a matter of planning judgment and applying the criteria set out in paragraph 4 above, he considered it was appropriate for this application to be considered by a Panel. Once he concluded, as he did in this case, that it was not appropriate on planning grounds to refer the application to a Panel, there was no realistic possibility, in my judgment, that he would nonetheless have referred the application for determination by a Panel simply by reason of Councillor Leadley's intervention. I am completely satisfied that an earlier intervention by Councillor Leadley would have made no difference to the decision made by Mr Jones.
Grounds 3 and 4
- The Claimants submit that it was not open to Mr Jones to determine the application since the exceptions contained within sub-paragraphs (b), (c) and (d) under the scheme of delegation applied to this application (Ground 3). The application should have been referred for consideration by a Plans Panel. The Claimants also allege that the decision to grant planning permission was one which was irrational or unreasonable (Ground 4). The Defendant disagrees with each of these propositions. Mr Colville submits that whether or not the exceptions contained within sub-paragraphs (b), (c) and (d) apply to any application is essentially a matter for the planning judgment of the Defendant's officers. In the absence of irrationality or unreasonableness in the exercise of that judgment no challenge can be made, successfully, to the conclusion that the exceptions do not apply. Mr Colville submits that irrationality or unreasonableness is not made out in this case. He also submits that the issue of irrationality or unreasonableness in relation to whether the exceptions apply is inextricably bound up with whether or not the actual decision to grant planning permission can be categorised as irrational or unreasonable. He submits that the decision to grant permission in this case was neither irrational nor unreasonable.
- 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.
- In R (Carlton-Conway) v London Borough of Harrow [2002] EWCA Civ 927 the planning officer of the Respondent had granted planning permission for an extension of a dwelling house that joined a house belonging to the Appellant. He did so in exercise of powers delegated to him by the Respondent. As in this case, the Chief Planning Officer was authorised to exercise the Respondent's functions in relation to applications for planning permission unless certain exceptions applied. The officer had determined that the relevant exception did not apply and had granted permission. The Appellant's claim for a quashing order in respect of the planning permission was dismissed by Stanley Burnton J (as he then was) but the Appellant successfully appealed to the Court of Appeal. The relevant exception was in the following terms:-
"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.
- 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 Mr Timothy Straker QC, on behalf of the respondents, is whether the planning officer could reasonably decide that the application did accord with the policies. Mr Straker submits that the test to be applied is the same test as is applied when a court has to consider whether a decision maker has properly granted planning permission and a question arises on the construction of a planning policy. There are parallel situations, submits Mr Straker, for example, under the Town and Country Planning (Development Plans and Consultation)(Departures) Directive 1999, where questions arise as to a notification to the Secretary of State, and when a judgment has to be made by a planning authority as to whether an environmental impact assessment under the EC Directive is to be conducted. Mr Straker submits that, provided the planning officer could reasonably arrive at the view that the application was not in conflict with the relevant policies, the court will not interfere. The court should approach the question in the same way as if the decision were the planning authority's. The same considerations bear upon his decision as upon a decision of a planning committee.
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 Mr Straker, and on this point I agree with him, for an objector to raise a point of substance. The objector may raise an important point, but that does not of itself require the planning officer to refer the matter to a committee. The language of para 1.9 is plain, it is submitted. The planning officer decided that the application was not in conflict with relevant policies, and it was not an unreasonable decision to make. Mr Straker refers to the emphasis on speed, which is now important in the consideration of planning applications, and, hence, the importance of the exercise of the delegated powers.
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 Mr Straker has rightly reminded us. However, on the material before the court, I am satisfied that the planning officer acted beyond his powers in deciding to grant permission. The complexities present were such that the planning officer could not reasonably act upon the exception in para 1.9. The only rational decision would have been to refer the application to the committee to make the appropriate planning judgments in this case.
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."
- In R (Springhall) v London Borough of Richmond-upon-Thames [2006] EWCA Civ 19 the Claimant was an objector to planning applications made by his neighbour. The local authority had adopted a scheme of delegation which included the following in the category of matters reserved to the planning committee:
"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."
- 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] Mr Lewis' attempt to extend the reach of the Carlton-Conway decision to the more clearly expressed policies and undisputed material facts of this case cannot be reconciled with the clear authority of the Court of Appeal in R v Derbyshire CC ex p Woods [1997] JPL 958 and of Lord Hoffmann in Tesco Stores v Secretary of State for the Environment [1995] 93 LGR 403. Unless the decision-maker attaches a meaning to the words of a planning policy they cannot reasonably bear, it is not for a court to substitute its own interpretation of a policy. And the application of such policy to the facts of any particular case is a matter of planning judgment for the decision maker, subject only to consideration of Wednesbury rationality.
[30] Here, …., the policies in play are clear….. Accordingly, I reject Mr Lewis' submission that, if the officer, when considering whether to exercise delegated power, is not sure that the proposed development satisfied the local policy he should decline jurisdiction and that a court should quash his decision if he does not do so. To adopt such a test would or could involve a court exercising a form of planning judgment in challenges to an officer's exercise of the delegated power, whereas its only right to intervene, whoever makes the planning decision, is on grounds of Wednesbury irrationality…
[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. Mr Lewis' proposed extension of the Carlton-Conway decision into a general principle does not provide any workable basis for distinguishing between those cases that are determinable under delegated powers and those that must be referred to committee. By contrast…. the approach of Richards J sets a workable boundary by acknowledging that there will often be more than one perspective as to whether a proposed development would comply with planning policy. Where there is a scheme of delegation, as in this case, the decision of the officer is a planning judgment. The only realistic way in which a judgment – whoever makes it – can be challenged is on the ground of irrationality, as was the case in Carlton-Conway's case, or other illegality, neither of which obtains here.
[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 Mr Lewis' argument that an officer's task in exercising delegated decision-making powers is a 'threshold' exercise. His task is the same as that of the planning committee if the matter had been retained by or referred to them, namely whether to grant or refuse planning permission. If an officer is of a view that he can make sense of the policies and identify the relevant facts so as to enable him to apply the former to the latter, there is no basis, short of illegality or Wednesbury irrationality, why the court should intrude further on the arrangements local planning authorities make for their decision-making."
- 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.
- In the present case, as I have said, the decision to grant planning permission was made by Mr David Jones. He made his decision on 7 February 2008 after considering a document entitled "Delegation Report" prepared by Mr Richard Smith. The report consisted of many pages. It contained a description of the application site and its surroundings, a summary of relevant representations and responses from consultees, a list of relevant planning policies and a long section in which it analysed what were described as the main issues in relation to the application. Mr Smith identified the main issues as being:- (a) the principle of development, (b) highway safety, (c) design and materials,(d) landscaping/amenities space, (e)drainage matters and contaminated land and outstanding objection points. The report contained an assessment of each of these issues in turn before concluding:-
"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."
Mr Smith's report did not address, expressly, whether exceptions (b), (c) and (d) under the scheme of delegation applied to the application. However, it is obvious from the contents of the report that Mr Smith considered that they did not apply. I say that since it is clear from his report he considered that the development did not constitute a significant departure from the development plan or from any local development framework in force; that it was not materially different from any supplementary planning guidance approved by or on behalf of the defendant and it did not constitute a major development which would have significant impacts on local communities. He did not carry out a "two-stage appraisal" before making his recommendation that planning permission should be granted. It does not seem to me that such a two-stage approach was necessary in the light of the authorities considered above.
- Mr Jones must have accepted the judgment made by Mr Smith. No other conclusion is possible given that Mr Jones decided to grant planning permission on the very day that the report of Mr Smith was presented to him. No contemporaneous document exists which suggests otherwise. Mr Jones's witness statement dated 24 October 2008 constitutes a detailed rebuttal of grounds 1, 3 and 4 in this judicial review but does not suggest other than that he made his decision to grant planning permission very much in reliance upon the report prepared by Mr Smith. There is no reason to think that he approached the issue of whether any of the exceptions under the scheme of delegation separately from the issue of whether to grant planning permission.
- It follows, in my judgment, that the question for me is whether Mr Smith's recommendation to the effect that planning permission should be granted under delegated powers was irrational or unreasonable. If it was Mr Jones's decision was also unreasonable or irrational since, of course, he was at the very least heavily reliant upon Mr Smith's recommendation and the reasoning justifying it.
- At first blush Mr Smith's report reads as a balanced and properly considered planning appraisal. It is replete with planning judgments; it is notoriously difficult to establish that such judgments are unreasonable or irrational.
- 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.
- As I have said, Mr Smith identified landscaping and amenity space as a main issue in the delegation Report. In his assessment of the issue of amenity space Mr Smith wrote:-
"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 Lewisham Park (which is under 400m away to the north-east of the site).
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."
- Mr Greatorex submits that no consideration was given prior to the grant of planning permission as to how this condition could be fulfilled. There is certainly no documentation disclosed in these proceedings which demonstrates how the condition might be fulfilled.
- In his witness statement Mr Jones deals with this point at paragraph 16. He does not explain how additional or improved green space would be provided; rather he appears to suggest that it would be open to the Defendant to accept a financial contribution in place of such provision.
- 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.
- 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.
- When this issue was considered in oral submissions Mr Colville did not seek to persuade me that there was a realistic likelihood that the Interested Party would submit a scheme under which additional or improved green space would be provided on or off site to meet the needs of the development. His stance was that at some future time the Interested Party could make a payment to the Defendant and thereby fulfil the condition.
- It seems to me that Mr Colville's submission is fraught with difficulty. It is well recognised that sums of money can be paid by a developer to a local planning authority by virtue of a planning obligation entered into under section 106 of the Town and Country Planning Act 1990. It is by no means clear that such a payment can be made so as to fulfil a condition when the condition is silent about the making of payments.
- 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.
- 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.
- Drainage matters and contaminated land were also identified by Mr Smith as a main issue in his Delegation Report. On 15 November 2007 Ms Rosie Bartlett, a technical officer employed by the Defendant, sent a memo to Mr Smith in which she wrote:-
"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…."
- 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.
- There is no evidence that Mr Smith asked the Interested Party to provide a second report and, certainly, no such report was obtained. On 5 February 2008 Mr Smith emailed Ms Bartlett as follows:-
"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?" Contaminated Land in your response dated 28 Nov 07.
The same day Mr Smith and Ms Bartlett spoke together and she then responded to the effect that since the application needed to be determined by Thursday she had recommended conditions although she would have preferred a site investigation up front.
- 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.
- 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.
- 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.
- 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.
- I propose to hand down this judgment in Cardiff. I do not expect the parties to attend at the handing down. They should make written submissions to me by 12 noon 23 March 2010 upon the appropriate form of the order and the appropriate order for costs. Any application by the defendant for permission to appeal should be made by the same time and date. If, of course, the parties agree an order consequent upon this judgment they should simply submit a draft for my consideration.
