Ling (Bridlington) Ltd. & Ors, R (on the application of) v East Riding of Yorkshire Council [2006] EWHC 1604 (Admin)

Case No CO/7150/2005[2006] EWHC 1604 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 1st June 2006
Strand
London WC2
B E F O R E:
SIR MICHAEL HARRISON
Between
THE QUEEN ON THE APPLICATION OF LING (BRIDLINGTON) LIMITED & ORSClaimant-v-
Between
EAST RIDING OF YORKSHIRE COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MISS J WIGLEY (instructed by HAMMONDS) appeared for CLAIMANTMR S HOCKMAN QC & MISS M THOMAS (instructed by COUNCIL'S LEGAL DEPARTMENT) appeared for DEFENDANTMR M EDWARDS appeared for INTERESTED PARTY
J U D G M E N T

SIR MICHAEL HARRISON: Introduction

[2]This is an application for judicial review to quash two planning permissions and a resolution to grant a planning permission, all of which related to development on the seafront at Bridlington in the East Riding of Yorkshire. The first planning permission relates to the erection of a 34 metre high observation wheel ("the wheel permission"). The second planning permission relates to a change of use to a fun park and erection of a retaining wall ("the fun park permission"). The resolution to grant planning permission relates to the erection of a restaurant class 3, an arcade and a terrace area ("the arcade resolution").[3]The sites of all three proposed developments lie between the Royal Prince's Parade and the Esplanade to the north of the Floral Pavilion in an area generally devoted to leisure uses. The applicant for planning permission (the Interested Party in these proceedings) was Harrison Leisure Limited who own and control a number of leisure uses in the immediate area known as North Sands Fun Park. The four claimants also operate amusement arcades and leisure uses within the adjoining area. They also own some flats on the other side of the Esplanade, most of which are occupied by those involved with their businesses. The defendant is the planning authority for the area.[4]The Interested Party submitted the three planning applications in March 2005. The wheel application and the fun park application were first considered by the defendant at a meeting of the Northern Area Planning Sub-Committee on 18th April 2005, when the applications were deferred and delegated for approval subject to no objections raising new issues being received by the end of the consultation period. Following receipt of new issues being raised by objectors, including the claimants, the two applications were considered by the Eastern Planning Sub-Committee on 23rd May 2005 with an officer's recommendation for approval but they were again deferred, this time for a site visit.[5]At the same meeting, the third application, the arcade application, was considered for the first time with an officer's recommendation for deferral pending receipt of amendments to the roof of the building requested by the Conservation Officer and with a recommendation of approval subject to the amendments being satisfactory. At that meeting, that application was also deferred for a site visit.[6]At the site visit, members went into the home of one of the objectors to view the site of the wheel from a first floor window.[7]All three applications were then considered again by the Eastern Area Sub-Committee on 13th June 2005. On that occasion, the Sub-Committee resolved to approve the wheel application and the fun park application, subject to conditions, and to defer the arcade application for the submission of a satisfactory flood risk assessment and for the amendments requested by the Conservation Officer and to delegate the application for approval subject to receipt of those items.[8]On 28th June 2005 the defendant issued the planning permissions for the wheel application and for the fun park application. No decision notice has yet been issued in respect of the arcade application.[9]A number of different points have been taken by the claimants relating to each of the three decisions. It will be necessary to refer to the officer's reports relating to each decision. The wheel permission a) introduction[10]I start by dealing with the wheel permission. The proposed observation wheel would be a substantial structure, 34 metres high. One of the objections raised was alleged overlooking of the nearby residential properties on the other side of the Esplanade from the gondolas or passenger carriages.[11]The officer's report of 18th April 2005 identified the key issues as the impact on the appearance of the area and the impact on the amenities of neighbouring occupants. Under the heading "Impact on the Character and Appearance of the Area and Residential Amenity", the officers stated:
"The observation wheel would be located at a distance of at least 30m from the front elevations of properties on The Esplanade. The appearance of the wheel is considered acceptable, subject to conditions to control materials, colours and a scheme of lighting. The distance of the wheel from nearby flats is such that there should be no harmful overlooking. Conditions should be attached to control the impact of lighting and to ensure that noise levels are not higher than the existing background noise."
[12]In the paragraph headed "Conclusion", it was stated that the proposal was considered to accord with the relevant local and national planning policy and to be acceptable subject to the conditions set out at the end of the report which did not include a condition relating to privacy of the occupiers of nearby properties. That aspect was not considered further in the report to the meeting on 23rd May 2005. As I mentioned, at the site visit members went into a first floor room of an objector's home to view the site of the wheel. When the matter came back to committee on 13th June 2005, the officer's report still did not contain a loss of privacy condition, but the planning permission that was issued on 28th June 2005 did have such a condition. In fact, it was a condition which members were told at the meeting on 13th June 2005 had been proposed by the Interested Party and which members obviously thought reasonable to lessen the potential for overlooking. The condition, which was condition 6, stated: "Prior to the wheel being brought into use, each passenger carriage shall be fitted with tinted glazing on the west facing side, in accordance with a sample or specification to be submitted to and agreed in writing by the Local Planning Authority. The glazing shall thereafter be retained, and any additional or replacement passenger carriages shall be fitted with identical glazing. This condition is imposed to lessen the potential for loss of privacy to occupiers of nearby residential properties from users of the observation wheel." (b) overlooking Condition 6 is the subject matter of the first complaint made by the claimants relating to the wheel permission. It is said to be bizarre and irrational because, whilst the tinted glazing would prevent residents seeing the occupants of the passenger carriages, it would not prevent those in the passenger carriages seeing the residents in their homes. It therefore did not do anything to address the privacy point to which the condition was directed. Reliance was placed on paragraph 15 of the Annex to Circular 11/95 to the effect that conditions should only be imposed if they are necessary. It was submitted that the condition which was thought to be necessary was useless.[13]There is considerable force in the point made by the claimants but I am not persuaded that it would be appropriate for the Court to intervene. This was a matter of judgment for the committee. The officer's advice was there would be no harmful overlooking, and the members had made a site visit. The Interested Party had proposed a condition for tinted glazing and the members thought it reasonable to take up that proposal to lessen the potential for loss of privacy. The reason given for the imposition of the condition was to lessen, not to overcome, the potential for loss of privacy. The degree of tinting may affect the degree to which the potential would be lessened. It may be fairly marginal, though it could well lessen any perception of overlooking. These are all matters of degree which were matters of judgment for the committee. As I have said, despite the force of the point made, I am not persuaded that it is a matter on which the Court should intervene.

(c) lighting

[14]The second point taken by the claimants in relation to the wheel permission relates to the lighting condition, condition 3, which provides:
"No development shall take place until a detailed scheme for lighting of the development has been submitted to and approved, in writing, by the Local Planning Authority and no lighting shall be installed other than in accord with the approved scheme. This condition is imposed in the interests of the visual amenities of the area and the residential amenities of neighbouring occupiers."
[15]The condition had been recommended in the officer's reports. Information had been obtained about lighting by the defendant from the Interested Party's agent which was that there was would be decorative lighting on the wheel and on the gondolas and that there would be general lighting to the access platform.[16]The claimants submit that there was no assessment of the impact of the lighting and that it was therefore impossible for members to know whether or not it could be made acceptable by the imposition of a condition.[17]Whilst it is true that the officer's reports do not contain any assessment of the impact of the lighting, they had obtained information about the proposals for lighting which had satisfied the Public Protection officer, and which enabled members to accept the recommendation that it could properly be dealt with by way of a condition. It must be remembered that members had visited the site and could assess the impact of the illumination of the wheel on residential properties 30 metres away in the light of the information which had been received and in the context of the lighting which already existed at the fun fair. In my view, condition 3, by requiring approval of a lighting scheme before the development could commence, gave the defendant sufficient power to ensure that the lighting would not materially harm residential or visual amenity.

(d) noise

[18]The third point taken by the claimants in relation to the wheel permission relates to the noise condition, condition 4, which provides:
"Prior to the commencement of development, details of the proposed noise levels, and any measures necessary to reduce noise disturbance, shall be submitted to, and agreed in writing by the Local Planning Authority. The development shall thereafter be carried out in accordance with the approved scheme. This condition is imposed in order to reduce noise disturbance."
[19]The condition had been recommended in the officer's report of the 13th June 2005. The information that had been obtained about noise from the Interested Party's agent was that the power would be from mains electric, there would be no generators, the motors would be quiet and the ride would make no noise.[20]The claimants submit that no assessment had been made of the impact of noise so that it was impossible to tell whether the development was acceptable in principle. It was contended that, without information relating to the current and proposed levels of noise, it was impossible to assess whether the noise aspect of the development was acceptable in principle. It was said that the condition did not provide any assurances that the impact would be acceptable.[21]Much the same comments as I have made in relation to the lighting condition apply to the noise condition. The officers and members were satisfied that the information that had been obtained from the Interested Party's agent was sufficient to satisfy them that the matter could be dealt with satisfactorily by way of a condition requiring an approved scheme to reduce noise disturbance before development could be commenced. Again, it must be remembered that members visited the site and would have been aware of existing noise levels from the existing fun fair. Indeed, it would appear from the officer's reports that noise was a matter raised by the officers rather than by objectors. Whether that is so or not, I am not persuaded that officers and members were not entitled to deal with noise by way of the condition imposed.

(e) reasons

[22]There is one other matter raised in relation to the wheel permission which relates to the reasons given for the grant of permission, but the same point is raised in relation to the fun park permission and it would be more convenient if I were to deal with it after I have dealt with the points raised in relation to the fun park permission so that I can deal with the reasons point in relation to both permissions at the same time. The fun park permission a) introduction[23]I turn then to deal with the points raised in relation to the fun park permission. That permission related to what the officer's report describes as "a steeply sloping grassed bank" which immediately adjoined the Interested Party's existing fun park. The proposal was to level the site and to erect a retaining wall so that the site could be used, in effect, as an extension to the existing fun park.[24]In the officer's report of 18th April 2005, when dealing with consultation replies, it was stated that, although the Public Protection Department had no objections, they had concerns about noise nuisance and loss of amenity to neighbouring residents and they requested that prior approval should be obtained from them before the amusement rides were placed on the site. The report identified the key issues as impact on the appearance of the area and impact on the residential amenity of nearby occupants. When dealing with the principle of the fun park use, it was stated that, in practical terms, the site was part of the Northern Sands Fun Park area. It had been excluded from the initial 1984 fun park application because it was too steep for siting fun park structures. The report stated that a condition should be imposed requiring details of each specific ride or building proposed to enable full consideration of its impact in terms of noise, appearance etc. The report concluded:
"It is considered that subject to the consideration of outstanding consultation replies, within the relevant period, use of this land as a fun park is considered to accord with relevant local and national planning policy and guidance and to be acceptable, subject to conditions to control the details [of] specific rides and uses as for the original fun park permission."
[25]Subject to no new issues being raised by the end of the consultation period, the report recommended delegation for approval with the same conditions as for the original fun park permission.[26]In fact, two of the claimants did raise a new objection which was that the proposal was contrary to policy EN1 which had not been referred to in the previous committee report. Policy EN1, which was set out in the committee report of 23rd May 2005, provides as follows:
"Subject to consideration against all relevant development plan policies proposals will be permitted where they are within defined development limits unless they would result in harm to, or loss of, [a] site considered important to the character and amenity of the surrounding area. Development within these limits shall be sited, designed and landscaped so as not to harm the appearance of the area. Proposals outside these areas will be treated as development in the open countryside."
The report then continued:
"The application site is a small area of grass that occupies a steeply sloping bank. As such it is not readily available for public use. It does add to the visual amenity value of the area, but not to a significant extent. There is an adjacent area of grass that will be retained, and the generally open nature of the immediate locality will remain unaffected. In light of the above, it is not considered that there is a conflict with Policy EN1, and the application is therefore recommended for approval, subject to conditions."
B) error of fact[27]The planning permission was subsequently granted subject to conditions, two of which are impugned by the claimants, but their first ground in relation to this permission is that the committee report, which it is assumed members adopted, contained a material error of fact in stating that the site was not readily available for public use, so that the report failed to take account of the actual public amenity value of the site and its actual public use. Mr Remblance, the first claimant's general manager, stated in one of his witness statements that he had regularly seen people using the site as an amenity space in the summer and he produced a photograph of a group of five people sitting on the site towards its edge.[28]Mr Cook, a development control manager employed by the defendant, takes issue in his witness statement with the statement in the claim form that the area is available for public use. The land is owned by the Council and he says that it is not utilised for any amenity purpose and that it is not set out for public use. He makes the point that it is not designated as an area of public open space and there is no public right of access to it.[29]This Court is not in a position to resolve issues of fact, especially on the basis of one photograph. Mr Cook seems to be referring more to the legal status of the site whereas Mr Remblance seems to be referring to the de facto use of the site. The report did not say that the site was not available for public use, it said that it was not readily available for public use. I assume that is a reference to it being a small area occupying a steeply sloping bank referred to in the preceding sentence of the report. I can imagine that some members of the public would make use of that small area in the summer in the way shown in the photograph, but the members carried out a site visit and were well able to assess the value of the site for public usage as well as its visual amenity value. I do not consider that there was any real danger of members being materially misled by what was in the report. c) condition 2[30]Next, the claimants attack condition 2 of the fun park planning permission which provides:
"Other than the observation wheel proposed under planning application ref DC/O5/01561/PLF, details of any ride or stall shall be submitted to, and agreed in writing by the Local Planning Authority prior to it being brought onto the site. This condition is imposed in the interests of the visual amenities of the area."
[31]It is submitted that the defendant failed to make any sensible assessment of the environmental impact of the proposed change of use to a fun park. In imposing condition 2, it is argued that the defendant failed to assess the impact of the rides or stalls on the environmental envelope in terms of such matters as noise, lighting, visual intrusion etc so as to assess the principle of whether planning permission should be granted. It was said to be writing an environmental blank cheque.[32]Whilst it is true that the reason given for the imposition of condition 2 was in the interests of the visual amenities of the area, the terms of the condition are wide enough to control such matters as noise and lighting. Indeed, it is clear from the officer's report, which I have summarised, that that was the intention. It has to be remembered that the officers and members already have experience of the adjoining fun park and were in a position to assess the principle of allowing its extension onto this site. In my view, the control given by condition 2 over any ride or stall before it is brought onto the site was sufficient to ensure that their environmental impact would be acceptable. d) condition 3[33]Next, the claimants attack condition 3 of the fun park planning permission which provides:
"Other than the observation wheel proposed under planning application ref DC/O5/01561/PLF, no ride or other structure shall exceed 11 metres in height. This condition is imposed in the interests of the visual amenity of the area."
[34]It is submitted that this condition is perverse and of no value because the defendant has already granted planning permission for an observation wheel 34 metres high which will therefore always be the fallback for approval of other rides or structures on the site so that the 11 metre limitation will be ineffective. It was said that the proof of the pudding is in the eating because a Skyflier, some 18 metres high, has been installed on part of the site for the proposed observation wheel. It was thought that it had been installed with permission although it exceeded the 11 metre limitation, but it turned out, in fact, that no planning permission for it has been obtained and it is being treated as a breach of planning control by the defendant.[35]Whilst, of course, the existence of the wheel planning permission can be taken into account when considering applications for future rides or structures, I do not accept that the existence of that permission would render the 11 metre high limitation in condition 3 ineffective. The observation wheel, sometimes referred to in the papers as the 'Bridlington Eye' in much the same way as the 'London Eye', is arguably a special case. Its existence could not in itself be justification elsewhere for breaching the 11 metre limitation which is the existing height limitation on the present fun park. Condition 3 is therefore consistent with the height limitation on the existing fun park and, if any ride or structure higher than 11 metres were proposed on the extended fun park, it would have to be the subject of a full application with full publicity and wider public scrutiny. Whilst that does not mean that no ride or structure higher than 11 metres would ever be permitted, if it were permitted it would only be after proper consideration of all the relevant environmental considerations and with the ability to contend that the 'Bridlington Eye' was a special case. e) reasons[36]The final point made by the claimants in respect of the fun park permission relates to the reasons given for the grant of permission. As I mentioned previously, the same point was made in respect of the wheel permission and it is convenient to deal now with that point as it relates to both permissions.[37]The factual position so far as the wheel permission is concerned is that, at the end of the permission following the conditions, the document stated:
"Note to Applicant: Reason for Decision. The proposal has been considered against the policies below and it is considered that the scheme accords with these policies, and there are no material considerations which indicate a decision should be otherwise East Yorkshire Borough Wide Local Plan: EN1 - Development Limits. T1 - Tourist Development. EN20 - Setting of Listed Buildings."
[38]In the officer's report of 18 April 2005, those policies had been expressly identified as being key planning policies and the report had concluded that the proposal was considered to accord with relevant local planning policy. Furthermore, in the report of 23rd May 2005, policy EN1 was fully set out with the reasons why it was considered that there was no conflict with that policy. The same reasons for the grant of permission were recommended in all three reports relating to the wheel application as were subsequently contained in the permission itself.[39]The factual position relating to the fun park permission is that at the end of the permission, following the conditions, the document stated:
"Note to Applicant: Reason for Decision - The proposal has been considered against the policies below and it is considered that the scheme accords with these policies, and there are no material considerations which indicate a decision should be otherwise. East Yorkshire Borough Wide Local Plan, T10 Tourist Development."
[40]In fact, policy T10 was a typing error for policy T1, as was accepted by the parties. Policy T1 had been identified as the key policy in the officer's report of 11th April 2005 and the report had concluded that the use of the land as a fun park was considered to accord with relevant local planning policy. The report of 23rd May 2005, in the same way as the report of that date relating to the wheel, set out policy EN1 because it had been expressly raised by objectors, concluding that was not considered that there was a conflict with that policy. The reports of 23rd May 2005 and 13th June 2005 relating to the fun park both recommended the same reasons for the grant of permission as were subsequently contained in the permission itself with the same typing error remaining undetected.[41]The claimants contend that the reasons for the grant of planning permission in each case are wholly inadequate. I am told that this is the first time that the Court has had to consider the standard of reasons for the grant of a planning permission. It is therefore necessary to refer, as a starting point, to the relevant statutory provisions which are to be found in Article 22(1) of the Town and Country Planning (General Development Procedure) Order 1995, as amended, which provides as follows:
"When the local planning authority give notice of a decision or determination on an application for planning permission or for approval of reserved matters and- (a) planning permission is granted, the notice shall include a summary of their reasons for the grant and a summary of the policies and proposals in the development plan which are relevant to the decision; (b) planning permission is granted subject to conditions, the notice shall:- (i) include a summary of their reasons for the grant together with a summary of the policies and proposals in the development plan which are relevant to the decision to grant permission; and (ii) shall state clearly and precisely their full reasons for each condition imposed, specifying all policies and proposals in the development plan which are relevant to the decision; (c) planning permission is refused, the notice shall state clearly and precisely their full reasons for the refusal, specifying all policies and proposal in the development plan which are relevant to the decision."
[42]It is Article 22(1)(b) which applies in this case because it concerns the grant of planning permission subject to conditions.[43]I was referred by the claimants to the Court of Appeal decision in English v Emery Reimbold & Strick Limited [2002] EWCA Civ 6O5, where the Court considered the standard of reasons to be given by judges in civil cases. Whilst it was accepted that the context was different, the claimants derived from that case, firstly the necessity for reasons to be sufficient for the participants to understand why they had won or lost and, secondly the necessity for the reasons to be sufficient to enable a supervisory jurisdiction to be exercised.[44]I was also referred to the judgment of Sullivan J in the case of R (On the application of Wall) v Brighton and Hove City Council [2004] EWHC 2582 (Admin) which was a case where no reasons at all were given for the grant of permission. The claimant submitted that that case was authority for the proposition that it was not necessary to show prejudice where there has been a breach of Article 22.[45]The claimants contended firstly that the standard of reasons for the grant of permission should be the same as for the standard of reasons for the refusal of permission and secondly, that the reasons given in each case simply amounted to an assertion with no reasons why the proposals were in accordance with the policies. Thirdly, reliance was placed on the fact that members did not follow the officer's recommendation relating to the wheel permission insofar as they added the tinted glazing condition. Fourthly, it was said that the reasons in both cases were not complete because they did not contain reference to policy BRID 15 which provides that the proposals for tourism development along the sea front will be permitted provided that they are compatible with the character of the surrounding area.[46]The defendant submitted that all that was required was a summary of reasons for the grant of permission, not a summary of reasons for rejecting reasons for objecting to the grant of permission. It was pointed out that there could be a great many objectors and reasons for objection, and it would be absurd if reasons had to be given for rejecting them. In these two cases, it was said that the reasons had stated that the proposals had been assessed by reference to the relevant development plan policies which were specified, and had been found to be in conformity with them. It was contended that those reasons accurately stated the reasons for the grant of permission in each case and that to go further would be to address the objections which was not required. It was accepted that policy BRID 15 had been omitted but it was pointed out that the reasons for the grant in one case referred to policy T1 and in the other case referred to policy EN1, both of which were concerned with the character of the surrounding area. Finally, it was submitted that if any of those contentions were wrong, the Court should refuse to exercise its discretion to quash the decisions because it would be pointless to remit the cases for the reasons to be more fully stated when they were self-evident from the papers.[47]In considering the adequacy of reasons for the grant of permission there are a number of factors which seem to me to be relevant. The first is the difference in the language of the statutory requirement relating to reasons for the grant of planning permission compared to that relating to the reasons for refusal of planning permission. In the case of a refusal, the notice has to state clearly and precisely the full reasons for the refusal, whereas in the case of a grant the notice only has to include a summary of the reasons for the grant. The difference is stark and significant. It is for that reason that I reject the claimants' contention that the standard of reasons for a grant of permission should be the same as the standard of reasons for the refusal of permission.[48]Secondly, the statutory language requires a summary of the reasons for the grant of permission. It does not require a summary of the reasons for rejecting objections to the grant of permission.[49]Thirdly, a summary of reasons does not require a summary of reasons for reasons. In other words, it can be shortly stated in appropriate cases.[50]Fourthly, the adequacy of reasons for the grant of permission will depend on the circumstances of each case. The officer's report to committee will be a relevant consideration. If the officer's report recommended refusal and the members decided to grant permission, a fuller summary of reasons would be appropriate than would be the case where members had simply followed the officer's recommendation. In the latter case, a short summary may well be appropriate.[51]In considering the adequacy of the reasons for the grant of the wheel permission and the fun park permission, it is clear that members followed the officer's recommendation in each case, save for the addition of the extra condition in the wheel permission relating to tinted glazing. The reason, however, for that difference is apparent from the reason given for the imposition of the conditions, namely that members thought the condition was necessary to lessen the potential for loss of privacy to occupiers of nearby residential properties. Otherwise, it is clear that members adopted the reasons and recommendations contained in the officer's reports. In those circumstances, it seems to me that the summary of reasons could be shortly stated.[52]The summary of reasons in both cases are really as short as they could be. Anything less would be inappropriate. But they do in fact reflect the stated conclusion in the officer's reports in both cases. Anything further may be said to be giving a summary of reasons for reasons. Therefore, I conclude that the reasons for the grant of permission were adequate in the circumstances of these two cases. I would, however, add a warning that planning authorities should guard against the temptation to trot out a standard formula for reasons for the grant of permission like a mantra without considering the individual circumstances of the case. I only mention that because it would appear from these two decision notices that the defendant may be adopting a standard formula, although in these cases it was applied to the individual circumstances of the case.[53]It is right to say that there was no mention of policy BRID 15, either in the officer's reports or in the reasons for the grant of permission. I would, however, accept that policies that were mentioned in both cases, namely policy EN1 in one case and policy T1 in the other case, are also both concerned with the character of the surrounding area which is also the concern of policy BRID 15. In those circumstances, I do not consider that the omission is material.[54]Finally, on the issue of prejudice, it is correct to say that Sullivan J stated in the Wall case that there is no requirement for an applicant for judicial review to show prejudice as a result of an alleged unlawful act, and he contrasted that position with an interested third party challenging a Secretary of State's decision letter granting permission on the ground of inadequate reasons in which case section 288(5)(b) of the 1990 Act requires substantial prejudice to be shown. However, in judicial review proceedings prejudice is a relevant factor when considering the exercise of the Court's discretion whether to grant the relief claimed. Indeed, in that case Sullivan J expressly considered the issue of prejudice in relation to both parties in that context. The issue of prejudice does not arise in the circumstances of this case, but if I were wrong in my conclusion about the adequacy of reasons in these two cases, I would still have refused to exercise my discretion to quash the permissions because no substantial prejudice has been caused to the claimants who are aware from the officer's reports why planning permission was granted. The arcade resolution a) introduction[55]I turn finally to the arcade resolution. The proposal was to erect a building to the south of the sites of the wheel and fun park applications and to the north of the Floral Pavilion between The Esplanade and Royal Prince's Parade with a single elevation on to The Esplanade and a two storey elevation onto Royal Prince's Parade. The higher floor was to contain a 'Burger King' restaurant with half of the lower floor being used as an arcade or family amusement centre. The Burger King restaurant would contain a hot food take-away element. There were therefor two relevant policy aspects of this proposal - the amusement arcade element and hot food take-away element.[56]The challenge to the decision of the defendant in this case relates to the defendant's interpretation of the respective policies relating to those aspects, namely policy BRID 24 relating to the amusement arcade use and policy BRID 25 relating to the hot food take-away use. Although the issues that arise in both cases are similar, it is necessary to set them out separately in order to avoid confusion.[57]Policy BRID 24, dealing with amusement arcades, states:
"Proposals for new amusement arcades, family leisure centres or extensions to such uses will only be granted along the defined the frontage of Esplanade/ Garrison Street."
[58]The defined frontage is shown on the Town Centre Inset Map as running along the western side of the Esplanade. Under the heading of "Justification", paragraphs 14.84 and 14.85 state:
"14.84 As a seaside resort Bridlington has a large number of existing amusement arcades and 'family leisure centres' and clearly there will continue to be a demand for such uses throughout the Plan period. Since 1982 planning permission have been restricted to the Esplanade area where they are considered to be well related to other tourist developments in the area. 14.85 Exceptions to this policy will only be made where amusement machines are a subsidiary element within larger tourism/recreational uses, and in these cases the number of amusement machines may be limited."
[59]The issue in relation to the amusement arcade element is whether, on a proper interpretation of BRID 24, it can be said to come within the exception in paragraph 14.85.[60]The officer's report of 23rd May 2005 identified as a key issue the principle of an amusement arcade use in this location. The relevant paragraph considering that issue, having set out policy BRID 24 and the justification paragraphs, stated:
"Compliance of this application with the above policy depends on whether the amusements machines are a subsidiary element within a larger tourism/ recreation use. As the arcade occupies all of the lower floor, approximately half the building, it could be considered not to be 'a subsidiary element' of the proposed building, and therefor would not comply with the above policy. However, the applicants point out that the arcade forms part of a much larger development which includes the Burger King, the Floral Pavilion café, bars and play area, and the Bayside Amusement Park with its rides. The whole area will be within the same ownership and control. Officers are of the view that the proposed arcade could be viewed as part of this larger proposal."
Policy BRID 25 deals with hot food shops. It states:
"Planning permission for new hot food shops will not be granted in the town centre and adjoining resort areas shown on the proposals map. Within these areas proposals will only be permitted for restaurants, cafes or public houses subject to conditions preventing the use of the premises or any part thereof as a hot food takeaway except where they form part of a major multi-purpose retail or tourism development."
The town centre and adjoining resort areas are shown by a different notation on the proposals map, forming part of the larger area of Bridlington shown on that map. Under the heading "Justification", paragraphs 14.86 and 14.87 state:
"14.86 The high level of demand for hot food take away shop in the town has been of particular concern to the Council due to potential effect of reducing the shopping element within the town centre and giving rise to environmental problems such as noise and smell, and particularly the tendency for food remains and litter to become spread over footpaths within the vicinity of hot food shops. Since 1980 a restrictive policy has been applied which remains appropriate. 14.87 Exceptions to this policy will only be made where a hot food take away outlet is within and forms a subsidiary part of a major multi-purpose tourism or retail development."
The issue in relation to the hot food take-away element is whether, on a proper interpretation of policy BRID 25, it can be said to come within the exception stated in the policy and which is, in effect, repeated in paragraph 14.87. The officer's report of 23rd May 2005 identified as the second key issue the principle of a hot food take-away use in this location. Having set out policy BRID 25 and paragraphs 14.86 and 14.87 in the report, it states that it was considered that the Burger King element of the proposal was a mixed use as a restaurant and as a hot food take-away. The report then continued: "Policy Brid 25 does not allow hot food shops in defined areas of the town centre. This policy restricts takeaways to limited areas of the town for two reasons - to protect against the loss of shopping facilities, and because of the environmental impact takeaways can have. However, it does make exceptions to allow restaurants where the takeaway element is within, and a subsidiary part of, a major multi-purpose or retail development. The proposal does not conflict with the first part of the policy, as it does not involve the loss of an existing shop. The proposal is considered to be a subsidiary element of a larger multi-purpose or retail development because it forms part of the larger leisure business based around the Floral Pavilion area owned and operated by the applicant." b) submissions[61]The claimants submitted that the interpretation of policies BRID 24 and BRID 25 contained in the reports, and apparently adopted by members, was perverse. The claimants' arguments relating to both policies were basically the same.[62]So far as policy BRID 24 is concerned, reliance was placed on the fact that the area of "larger tourism/ recreational use" constituting the amusement park operated by the Interested Party was in existence at the time when the boundary defined in policy BRID 24 was devised but it was not included within that defined boundary. If it had been thought that an amusement arcade was appropriate in that area, it would, it is contended, have been included within the defined area in the plan. Alternatively, it is contended that it stands the policy on its head to devise a boundary and then, in the absence of any material change in circumstances, to suggest that exceptions should be made to the policy in relation to circumstances which existed at the time when the boundary was drawn. The claimants accepted that it followed from their argument that the exception in policy BRID 24 only applied to future proposals for larger tourism/recreational uses outside the defined area, not to developments for such uses existing at the time the boundary was defined. They maintained that their interpretation of the policy was the only reasonable interpretation and that the defendant's interpretation was perverse because it undermined having the policy in the first place.[63]Reliance was also placed the reference in paragraph 14.84 to amusement arcades having been restricted to the Esplanade area where they were considered to be well related to other tourist developments in the area. It was argued that the tourist developments which were well related to the Esplanade could not be used as an exception to the policy because to do so would depart from the original justification for the policy.[64]I should just mention that there was also reference to another planning decision of the defendant relating to some toy cranes within the fun fair area of the seafront at Bridlington, but I do not gain any assistance from that decision.[65]The claimant's argument relating to policy BRID 25 followed the same lines as that for policy BRID 24, which I will not repeat. It was contended that, on the defendant's interpretation, a hot food take-away could be said to be part of a major multi-purpose retail or tourism development anywhere in the town centre.[66]Finally, it was submitted in respect of both policies that it was wrong to have taken ownership of the larger area into account as it was an irrelevant consideration.[67]The defendant's interpretation is that policies BRID 24 and 25 seek to place restrictions on amusement arcades and hot food shops, but subject to exceptions. In the case of policy BRID 24, the restriction applies to the whole defined area of Bridlington, with two exceptions, firstly the defined frontage of the Esplanade/Garrison Street and secondly the exception in paragraph 14.85, so that everywhere outside the defined frontage there is a restriction on amusement arcades save where the amusements machines are a subsidiary element within larger tourism/recreation uses. It being a matter of judgment for the decision-maker whether what was being considered was within "larger tourism/recreational uses" and whether it was a subsidiary use within it. In the case of policy BRID 25, it was said that the restriction applies to the area notated on the Proposals Map except where the hot food take-away element is a subsidiary part of a major multi-purpose retail or tourism development.[68]It was submitted that those interpretations were rational interpretations and that the defendant's decisions in each case were within the reasonable scope of what could be decided, there being no dispute that each use would be a subsidiary element in the larger area of uses being considered. Under the defendant's interpretation, it was said that there would be no need to restrict the exceptions to proposed developments; they could apply to existing or proposed developments.[69]Finally, it was contended that the reference in the reports to the larger area being within the same ownership and control was a relevant consideration when forming a planning judgment about the group of uses. c) conclusions[70]Applying the dictum of Mr George Bartlett QC sitting as a Deputy High Court Judge in Virgin Cinema Properties Ltd v Secretary of State for the Environment (1998) 2 PLR 24 at page 29, I do not consider that this is one of those cases where the ambit of reasonableness of interpretation is narrow or nil, so that it is a case where there is only one reasonable meaning. There is scope for different interpretations of these two policies, neither of which could be said to be perverse. In fact, I prefer the defendant's interpretation which seems to me to be reasonable. There are two main reasons for that conclusion.[71]The first reason is that, under the claimants' interpretation, the relevant use has to be subsidiary to or part of a proposed larger development and cannot be subsidiary to or part of a existing larger development. That is not what either of the policies say and, if that had been intended, they could have said so. Furthermore, it would be unusual to make the acceptability of the subsidiary use contingent on a future development in circumstances where its acceptability as a subsidiary element of the larger development would be the same whether the larger development existed or was still to come.[72]The second reason relates to the claimants' argument that the larger area of tourism/recreational uses identified in the officer's report would have been included in the defined area to which policy BRID 24 relates if it had been thought that an amusement arcade in that area was acceptable. That argument seems to me to ignore the element of subsidiarity in the exception under paragraph 14.85. Under policy BRID 24, an amusement arcade would be acceptable within the defined frontage of the Esplanade/Garrison Street without the need for it to be subsidiary to any larger area of uses. That is why there is, as I understand it, a concentration of amusement arcades in that area. Plainly that was not thought to be appropriate elsewhere and that is why elsewhere, including the area of the proposed arcade, the arcade has to be subsidiary to a larger area of tourism/recreational uses. I therefore do not find it at all surprising that the larger area identified in the officer's report in this case was not included with the frontage defined in policy BRID 24.[73]I should just mention that policy BRID 25 does not actually include the word "subsidiary", whilst paragraph 14.87 does, but both sides proceeded on the basis that that was the intention of the policy.[74]My conclusion therefore is that the defendant's interpretation of policies BRID 24 and BRID 25 was a reasonable interpretation, not a perverse one. That conclusion is not affected by the reference in the officer's report to the larger area of development being under the same ownership and control. That was simply an additional element which assisted in the identification of the area. I therefore reject the claimants' challenge to the defendant's interpretation of policies BRID 24 and BRID 25. Overall conclusion[75]Having considered the various grounds raised in relation to the wheel permission, the fun park permission and the arcade resolution, my overall conclusion is that, for the reasons I have given this application for judicial review must be dismissed.[76]MR HOCKMAN: I ask the application be dismissed with costs in favour of the defendant. My Lord, there are schedules of costs and I invite your Lordship to proceed by way of summary assessment. May I hand the relevant schedules to you? The first relates, as it were, to the permission application which was heard and determined by Collins J on 3rd April, when he reserved costs. That is only blue paper and the second relates to the period from the 3rd April onwards up to today and that is on white paper (Same Handed). The total sum claimed is, if your Lordship would be kind enough to a note of this figure, the total added, the two together, is £37,741.50p. My Lord, I please for order of costs against the claimants in that sum.

SIR MICHAEL HARRISON: I see. I will hear what Miss Wigley has to say. First of all on the principle of the matter.

[78]MISS WIGLEY: I am unable to resist the principle of the matter. In relation to the quantum, the schedule which my learned friend has just referred to conflicts with the information I have. I am not quite sure what the position is. I have a summary assessment schedule totalling £25,538 which I am instructed was an amended version submitted yesterday evening.[79]MR HOCKMAN: If I can assist my learned friend? That is the second of the two schedules that I handed to you. If you look at the beginning of that document, it makes it quite plain that is to cover the period 3rd April to 1st June, in other words it is post the grant of permission. If your Lordship looks at--

SIR MICHAEL HARRISON: Have you got the other one, Miss Wigley, the one which is for a total of £12,203?

[81]MISS WIGLEY: I do not have it in front of me.

SIR MICHAEL HARRISON: Mr Hockman is saying that that latter one which I have referred to for £12,203 is for the permission hearing and that the other one which you have just referred to is for work done since that date.

[83]MISS WIGLEY: Cumulatively, I see that. I do not have instructions to agree that amount. To be honest my instructing solicitor I think was confused by the two being cumulative in any case. She assumed that the two would have been combined with the latter schedule. On the basis that the hearing has gone over the single day I would ask for detailed assessment rather than dealing with these figures today.

SIR MICHAEL HARRISON: Are you not in a position to say what items are disputed?

[85]MISS WIGLEY: If I could have a few moments to take instructions?

SIR MICHAEL HARRISON: Yes. Take your time.

[87]MR EDWARDS: Whilst Miss Wigley takes instructions, may I make an application?

SIR MICHAEL HARRISON: If it relates to her, I do not think you can, because she has to take instructions.

[89]MR EDWARDS: I am warning her that I wish to make an application for costs but I think it best if deal with the defendant's costs first. (Pause).

SIR MICHAEL HARRISON: Thank you very much.

[91]MISS WIGLEY: My Lord, I am afraid I am not in a position, having taken instructions, to point to particular items that we would dispute. One point that does strike me is that the total costs exceed or just about equal the costs that the claimant would have claimed and that strikes me as the defendant's costs being excessive given the claimant had the additional items of work to do in bringing proceedings and preparing the bundles. In conclusion though, I am instructed to ask for detailed assessment.

SIR MICHAEL HARRISON: You only had the second document, that is to say the schedule since the permission hearing, the one for £25,538 last night, did you say?

[93]MISS WIGLEY: Those are my instructions, yes.

SIR MICHAEL HARRISON: Mr Hockman if there is to be dispute it seems Miss Wigley is not in a position to deal with the detailed reasons for considering it to be too much. I think I have to say that the costs should be subject to detailed assessment. So the order that I will make is that the claimant pay the defendant's costs to be the subject of detailed assessment.

[95]Then Mr Edwards you have an application to make?[96]MR EDWARDS: My Lord, yes, an application in the circumstances of this particular case that the claimants should also pay the Interested Party's costs.

SIR MICHAEL HARRISON: Why should they have to pay your costs as well?

[98]MR EDWARDS: I will put it briefly because we feel this was a commercial challenge not by members of the public but really by rival amusement centre and leisure operators and this has been our position throughout. We feel that it was necessary for us to put in evidence for example with regards to how the leisure area was operated and also with regards to the nature of the claimants.[99]Your Lordship has, in my submission, most comprehensively dismissed the challenge and I am very wary of the Court of Appeal's guidance in the Mount Cook case which is to be found on pages 556 and 557 of the bundle. There is also another aspect of this, which--

SIR MICHAEL HARRISON: What are you relying on? What is on those pages?

[101]MR EDWARDS: The factors to be taken into account by the Court, the hopelessness of the claim.

SIR MICHAEL HARRISON: Page, what did you say?

[103]MR EDWARDS: Page 557 of the bundle decision to adjourn.

SIR MICHAEL HARRISON: What bit are you referring me to?

[105]MR EDWARDS: I am referring to the top of page 557 of the factors that the Court of Appeal gave guidance on, that can be taken into account.

SIR MICHAEL HARRISON: What is this dealing with, is this not dealing with the permission stage?

[107]MR EDWARDS: It is my Lord, I accept it is dealing with the permission stage but I think it is also relevant to the substantive hearing, the extent to which--

SIR MICHAEL HARRISON: If you say the hopelessness of the case, permission was granted. It was an arguable case - I have had to deal with quite a lot of arguments.

[109]MR EDWARDS: I accept that point. By your Lordship had heard the case it has been comprehensively dismissed. The point I would concentrate on is paragraph C though, the extent to which the Court considers the claimant in the pursuit of the application has sought to abuse the process of judicial review for collateral ends. We say there is a collateral end that has been served by these proceedings notwithstanding that permission has been granted by Collins J and it is this. I can put it very simply. One of the consequences of this unsuccessful judicial review that my client has incurred costs firstly in insuring that planning permission which is as your Lordship has correctly, in my view, determined was lawfully granted remained intact. Secondly, might I ask I have lost the opportunity by the delay to install the eye. Therefore not only has my client but Bridlington as a result of these proceedings, a direct result of these proceedings the opportunity to install and operate as attraction for Bridlington and the wider area of the eye. It has missed its season hence we had the red-herring of the skyflier. For that reason, even though my clients will be relieved to know their planning permission is now safe, they have still lost as a result of using the judicial review process one season. My Lord, those are my reasons for asking for the award of costs.

SIR MICHAEL HARRISON: Thank you Mr Edwards. I am not prepared to grant a second set of costs. Normally a second set of costs is not awarded and I do not think there are reasons to do as an exception in this case. Whilst no doubt it was a commercial challenge, behind it all nevertheless there were perfectly respectable arguments that were put up, which were found to be properly arguable at the permission stage and the sort of matters to which Mr Edwards has referred constitute really the usual consequences of a decision on an application for judicial review. There is nothing exceptional, in my view, to warrant awarding a second set of costs.

[111]MR HOCKMAN: Would your Lordship care to return to me the two sets of figures I handed up to you earlier. So we know exactly what we have.

SIR MICHAEL HARRISON: I better keep one with the Court file. I am grateful to all the parties for the assistance they have given.

[113]MISS WIGLEY: My Lord, there is one further application. I would like to apply for permission to appeal. The reasons for that application are firstly that this case, as you acknowledged in your judgment, is a first case considering standard of reasons on a planning permission. With respect to your Lordship there is a real prospect that an Appeal Court may come to a different view as to where to draw the line on the detail needed, detail required in the reasons on a planning permission and I would request permission to take it to the Court of Appeal for that reason.[114]Secondly my Lord, a number of matters in your judgment relate to circumstances in which the Court should interfere in the decision-maker's interpretation of policy and, in the decision-maker's consideration of how to impose conditions and when I say I particularly refer to the condition relating to the tinted glass. For similar reason, my Lord, I submit that the Court of Appeal may well take a different view from yours as to the threshold at which the Court should interfere in that process. That is my application.

SIR MICHAEL HARRISON: Thank you very much Miss Wigley. Yes Mr Hockman.

[116]MR HOCKMAN: I oppose the application, my Lord. This is a very, very long way from the circumstances in which with all respect it would be appropriate to give permission. The closest that it gets and still a very, very long away in relation to the reasons issue which of course is a matter of wider importance as your Lordship made perfectly plain, but my Lord, on the discretion point alone, the outcome of an appeal in favour of the defendant, the local planning authority would be inevitable and therefore on that point alone, one could say that it would be completely pointless to grant permission to appeal irrespective of what view the Court of Appeal might take, and we would submit your Lordship's judgment would be resoundingly upheld. Leaving that entirely to one side the outcome of the appeal is in fact inevitable on the discretion point alone.

SIR MICHAEL HARRISON: Thank you very much. There is nothing you want to say in reply, Miss Wigley.

[118]MISS WIGLEY: One further point in response to my learned friend. There are two basis on which permission to appeal can be granted one is the real prospect of success. The other is whether there is some other compelling reason. Whilst my learned friend may be right that the outcome may be dictated by the prejudice point, there are two points I would like to make in response to that. Firstly, my Lord, from the Wall case it is clear that the issue of whether prejudice is needed to quash permission where the reasons are insufficient, is not clear cut and, in my respectful submission, the Court of Appeal may come to a different view on that point. Even if that is not the case in this case there is some other compelling reason and that is the reason of public importance for giving some guidance as to what the standard of reasons should be.

SIR MICHAEL HARRISON: Yes, I well understand the reasons you have advanced Miss Wigley but I am going to leave it to the Court of Appeal to decide if they wish to accede to your application. Thank you very much.

Cited in 16 later judgments

and 7 more of the most senior