Gale & Ors, R (on the application of) v Secretary of State for Communities & Local Government & Ors [2007] EWHC 2053 (Admin)

Case No CO/8088/2006[2007] EWHC 2053 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 23rd August 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF JOHN GALE AND OTHERSClaimantv
Between
SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENTDefendantSLOUGH BOROUGH COUNCILDefendantLINDEN HOMES CHILTERN LTDDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr Paul Oakley (instructed by Messrs Barrea & Co Solicitors, High Wycombe) appeared for ClaimantMr Daniel Kolinsky (instructed by the Treasury Solicitor) appeared for 1st DefendantMr Reuben Taylor (instructed by Messrs Matthew Arnold & Baldwin Solicitors, Watford) appeared for 3rd Defendant
J U D G M E N T
[1]MR JUSTICE SULLIVAN: This is an application under Section 288 of the Town And country Planning Act 1990 ("the Act") to quash a decision of an inspector appointed by the first defendant allowing the third defendant's appeal against the second defendant's refusal of planning permission for the demolition of number 41 Lower Cippenham Lane and the erection of ten two and three bedroom two-storey houses. The decision letter is dated 21st August 2006. The third defendant's appeal was dealt with by way of written representations and the Inspector made his site visit on 18th July 2006.[2]The application for planning permission had been recommended for approval by the second defendant's planning officers but members decided to refuse planning permission on a number of grounds. Paragraph 2 of the decision letter identified the three main issues in the Inspector's view. They were the "Character and appearance of the area", "whether the proposals would have an unacceptable effect on the surrounding highways" and "The effect of the proposal on the living conditions of neighbours". Although the grounds as submitted were somewhat more extensive, following the withdrawal of a number of the grounds by Mr Oakley on behalf of the claimants, the grounds as put before me in oral argument dealt with only one of those main issues, namely whether the proposals would have an unacceptable effect on the surrounding highways, and with one of the "other matters" dealt with by the Inspector in paragraphs 22 and 23 of the decision letter.[3]In paragraph 23, the Inspector dealt with the archaeological issues in these terms:
"The Berkshire Archaeologist has acknowledged that there may be the potential for archaeological features within the site. No evidence has been presented by the Council to indicate that the potential is such that an evaluation should be undertaken prior to a decision on the planning proposal. In accordance with the advice in PPG16, I shall impose an appropriate condition to ensure that an evaluation is undertaken prior to the start of development."
[4]It is convenient to deal with the latter issue at the outset. Mr Oakley referred me to policy EN20 in the Local Plan for Slough, March 2004. That policy deals with archaelogical remains and is in these terms, so far as relevant:
"In areas with archaelogical potential, a prospective developer will be required to carry out an archaeological field evaluation before any decision is taken on a planning application."
Mr Oakley also referred me to paragraphs 21 in PPG16, which deals with archaeology and planning. So far as relevant, that paragraph says:
"Where early discussions with local planning authorities or the developer's own research indicate that important archaeological remains may exist, it is reasonable for the planning authority to request the prospective developer to arrange for an archaeological field evaluation to be carried out before any decision on the planning application is taken."
[5]The submission made on behalf of the claimants is that the Inspector was not entitled to deal with the matter in the way that he did, namely by the grant of planning permission subject to the imposition of what might be described as a standard archaeological condition. Instead, they submit, planning permission should have been refused because an archaeological field evaluation had not been carried out. The applicability of those policies depends, however, upon a judgment in the case of the policy in paragraph 22 of PPG16 that "important archaeological remains" may exist and, in the case of policy EN20, that the site is fairly described as an area with "archaeological potential". We do not have the advice of the Berkshire archaeologist in the court bundle. However, the archaeologist's advice is summarised in these terms in the planning officer's report to the committee:
"On the adjacent site archaeology remains dating from the Bronze Age and the Roman Period were found. An archaeological evaluation was recommended and conditions to address this are requested."
Thus, on the face of it, it does not appear that the archaeologist was saying that planning permission should be refused because no archaeological evaluation had been carried out.[6]The planning officer returned to that issue when setting out his views on the various matters that had been raised. Under the heading archaeology, paragraph 3.23 of the officer's report said:
"An archaeological investigation has been requested by the Council by the Berkshire Archaeologist. This can be controlled by condition."
The condition suggested by the planning officer, which on the face of it would appear to be in conformity with the Berkshire archaeologist's wishes, was as follows:
"No development shall commence until a written scheme of archaeological investigation (to include the scheme and a time scale for the investigation) has been submitted to and approved in writing by the Local Planning Authority. The scheme shall be implemented in accordance with the approved details."
[7]When granting planning permission, the Inspector imposed this condition, number 8 in his list of conditions:
"No development shall take place within the site until the applicant, or their agents or successors in title, has secured the implementation of a programme of archaeological work in accordance with a written scheme of investigations which has been submitted by the applicant and approved in writing by the local planning authority."
Thus, in substance, the Inspector in granting planning permission was imposing the very conditions that had been recommended by both the Berkshire archaeologist and the planning officer. That course was plainly open to the Inspector and the challenge to this aspect of the decision letter is entirely misconceived, in my judgment. It not merely treats policy EN20 as though it was absolutely binding and incapable of being departed from, regardless of the expert archaeological advice. It also assumes that which is necessary to prove, that is to say that this was indeed a site which could fairly be described as being within an area of archaeological potential. Whether condition 8 imposed by the Inspector sufficiently safeguarded any possible archaeological interest was pre-eminently a matter of planning judgement for him.[8]I turn therefore to the other ground of challenge, which was concerned with the Inspector's conclusion under the second issue, whether the proposals would have an unacceptable effect on the surrounding highways. The matter was put in this way in both the grounds and the applicant's skeleton argument:
"The First Respondent or her inspector failed to take into account or failed to give any adequate consideration to that which was relevant under the following heads of their deliberation, namely: Whether the proposals would have an unacceptable effect on the surrounding highways."
[9]Pausing there, the proposition that an Inspector failed to give adequate consideration to something does not on its face raise any issue of law whatsoever. Questions of weight, whether to give considerable weight to a particular factor or very little, are very much a matter for the planning judgment of the Inspector. The proposition that the Inspector failed to give any consideration to whether the proposals would have an unacceptable effect on the surrounding highways is plainly unarguable since that was identified by the Inspector as one of the main issues and indeed is considered in some detail in paragraphs 12 to 16 of the decision letter.[10]The skeleton argument refers to policy H13 of the Local Plan. That policy is in these terms:
"Proposals for small scale infilling, include backland development, will not be permitted unless they comply with all of the following criteria ... b) appropriate access, amenity space and landscaping are provided for the new dwellings; c) appropriate car parking provision is made in line with the aims of the integrated transport strategy..."
[11]The way the complaint is formulated in the skeleton argument is as follows:
"It is important to bear in mind that there are two aspects of this, namely vehicle movement as well as parking provision. The decision was based solely on the discrete Linden Homes proposals. It took no account of separate new developments in the area, nor of the plans themselves, the new road layout of which would allow for future expansion and increased traffic. In addition, the inspector's mind was focused primarily on the cars of the new householders and took no or no adequate account of, say, delivery vehicles. His opinion that any additional parking would not take place in Lower Cippenham Lane was not supported by evidence or by a suggestion that some kind of sanction could be introduced to stop such parking."
[12]None of those points were relied upon by Mr Oakley in his oral submissions before me, no doubt for the very good reason that there were no proposals before the Inspector for "separate new developments". The traffic impacts of such proposals, if and when they come forward, would be the subject of further consideration by the planning authority and/or by the Secretary of State on appeal. Insofar as the other matters are concerned, they are plainly matters of planning judgment and raise no issue of law whatsoever. The point, as explained in Mr Oakley's oral submissions, linked policy H13 with policy T3, which says:
"Planning permission will not be granted for any development which would increase the risk of accidents or endanger the safety of road users including pedestrians, cyclists, and other vulnerable road users or compromise the safety and free flow of traffic."
[13]It is clear that the Inspector did consider those issues. The complaint, as put before me, focused on the works proposed to Lower Cippenham Lane in order to accommodate the additional traffic. The Inspector dealt with that in two paragraphs in the decision letter. In paragraph 8, which was in the section of the decision letter which dealt with the character and appearance of the area, the Inspector said:
"The works to the public highway along Lower Cippenham Lane are indicated to include two areas where the kerb would be built out, two 'rumble strips' and the provision of a footway between the site entrance and Autumn Close, plus amendments to create an emergency access to Cippenham Lane. The Council state that these alterations would fundamentally change the character of the Lane which would become sub-urban as a result. In my opinion, the relatively small areas concerned would not result in the character of the area being altered to an unacceptable degree. I consider that the vital issue regarding the effect of such alterations would depend on the choice and combination of materials to be used. The appellant was indicated that, in the event, care would be taken over the choice and quality of such materials, which could be controlled by a condition."
[14]Pausing there, I recognise that the applicants vigorously disagree with that view of the Inspector but it is a matter of planning judgment and it is to be noted that in that respect all the Inspector was doing was agreeing with the Council's own planning officer.[15]Paragraph 13 of the decision letter said this:
"In order to ensure that the additional vehicle movements do not compromise safety on Lower Cippenham Lane, the aforementioned works to the highway in the vicinity of the site were formulated. I note that these were prepared in consultation with the Council's Highway Officers. Taking account of the lack of pedestrian facilities and the varying width of the road, measures such as these are both necessary and reasonable in the light of the additional vehicle movements expected."
The Inspector then dealt with the question of the adequacy of car parking spaces and alteration to the currently closed off junction of Lower Cippenham Lane and Cippenham Lane and concluded in paragraph 16:
"... I conclude that the proposal would not result in any increased risk of accidents or endanger the safety of road users, nor compromise the free flow of traffic. The proposal is therefore consistent with the aims of Policy T3 of the LP."
[16]Given that the Inspector was there agreeing with the professional advice that was before the Council from both the highway officers and the planning officers, it would be impossible to contend that that conclusion was irrational. Mr Oakley did not so contend. Rather, his submission under this heading was put forward on a very narrow basis and one which had not been foreshadowed in the grounds. The basis was this: in his observations upon the application to the planning officer, the Council's traffic consultant had said this:
"I would however advise that the traffic calming proposals for Local Cippenham Lane, need to be subject to public consultation in accordance with the Traffic Calming Regulations 1999. Until this process has been completed then I would suggest that there is no certainty that the features can be implemented. I would also suggest that it would be contrary to the advice contained in Circular 1/95 to impose a condition requiring its implementation until the public consultation process has been completed. As such this application is premature until the outcome of the public consultation is known. I assume that Highways will comment further on this matter. Mindful of the above, whilst I have no objection in principle to this application, I consider that the planning application is premature until it can be certain that the required traffic calming measures are indeed implementable."
[17]It is perfectly correct, as pointed out by Mr Oakley, that regulation 4 of the Highways (Traffic Calming) Regulations 1999 provides that:
"Where a highway authority proposes to construct a traffic calming work in a highway they shall– (a) consult the chief officer of police for the area in which the highway is situated; and (b) consult such persons or organisations representing persons who use the highway or who are otherwise likely to be affected by the traffic calming work as the highway authority thinks fit."
[18]However, the test for the Inspector, and indeed the planning authority, in deciding whether or not planning permission should be granted was not whether they could be "certain" that the required traffic calming measures were implementable but whether on all of the evidence they were satisfied on the balance of probabilities that appropriate traffic calming measures could be implemented and would be sufficient in order to avoid any risk to highway safety. The judgment as to whether a consultation process is likely to be so significant an obstacle as to warrant a refusal of planning permission is a matter of planning judgment, both for the planning authority and, on appeal, for the Secretary of State or her inspector. It is plain from the planning officer's report that he did not accept that the application was premature pending consultation on the traffic calming measures. When summarising the position of consultees on highways and traffic, he said this:
"The original objection from the Head of Highways was received. However, following negotiation with the applicant's agents, this has been removed subject to undertaking works in Lower Cippenham Lane to increase visibility at the Autumn Close Junction and to introduce road narrowing and a shared surface. This can be controlled by Section 106 Agreement."
In paragraph 3.17, he set out his own view of the traffic objection:
"No objection has been raised by the Head of Traffic on the basis of overall increase in traffic generation. However, the proposal will result in the increase in the number of units served by the single access road Lower Cippenham Lane. The road would therefore need highway safety measures to be incorporated to meet Council Standards. As outlined in the Visual Amenity Section above, measures have been proposed to provide traffic calming, pedestrian facilities and increased visibility at the Autumn Close junction. The Head of Highways and Traffic is satisfied that subject to these being implemented, there will be no objection on technical traffic and highway safety grounds to the development. His comments regarding the proposed off site highways improvement plan received on 30/11/2005 will be reported on the amendments sheet. These measures could be secured through a Section 106 Agreement."
[19]When drawing the threads together in the summary in part 4 of the report, the planning officer said, having dealt with amenity objections raised by local residents:
"The main concern relates to the visual impact of the development. This is not the development itself which would not be highly visible from Lower Cippenham Lane and is of an appropriate scale and design. The main concern relates to the traffic calming measures necessary to facilitate the development in highway safety terms. These measures would introduce changes in the section of Lower Cippenham Lane up to the entrance of the site from the roundabout at Richards Way. It is acknowledged that these changes would have some visual impact upon the lane but subject to sympathetic design and materials, the impact could be significantly reduced. As a single reason for refusal, it is not considered that this would be significant to substantiate refusal of the application."
Thus there is no suggestion that the technical advice before the council was to the effect that suitable traffic calming measures could not be devised, which would deal with the highway safety issues, but rather the advice was that they could indeed be devised and the question was therefore raised as to what their visual impact would be. Those were issues which were squarely grappled with by the Inspector in the passages of the decision letter which I have read.[20]There is in any event no substance whatsoever in the complaint of no consultation because in the event the councillors did not accept their officer's recommendation and refused planning permission. Thus those who objected to the development, and in particular those who objected to the proposed works in Lower Cippenham Lane and contended that they would be either visually intrusive and/or would not be sufficient to overcome concerns relating to highway safety, had ample opportunity to put all of those points to the Inspector, who would have been able, if so minded, to refuse planning permission on the grounds that, notwithstanding the ability to carry out traffic calming measures, there would still be an unacceptable risk to highway safety. The Inspector plainly did not so conclude.[21]The further point is that although many of the letters did raise the issue of highway safety and the appropriateness of the proposed traffic calming measures, so far as one can tell (and I say so far as one can tell because it is not clear from the very extensive bundle what material was, and what material was not, placed before the Inspector), there was no suggestion that the lack of consultation under regulation 4 of the regulations was or was likely to be an insuperable obstacle to the grant of planning permission subject to an appropriate condition. For all of these reasons, this other challenge, which was indeed the claimant's principal challenge, is in my judgment entirely misconceived. This is a case where, although I quite understand the claimant's strong views about the planning merits of the Inspector's decision, in terms of whether or not there is a properly arguable legal challenge under section 288 of the Act, this case is totally without merit and I so certify and order that it be recorded in the court's order.[22]Yes. Thank you.[23]MR KOLINSKY: May it please your Lordship, the first defendant, the Secretary of State, seeks an order for costs. There was a summary schedule served. Did that reach the court?

MR JUSTICE SULLIVAN: I think it did somewhere but I cannot remember where I put it.

[25]MR KOLINSKY: There is an additional copy available if that would assist my Lord.[26]MR JUSTICE SULLIVAN: Could you give me the additional copy? It will be quicker than me hunting around. (handed)[27]MR KOLINSKY: My Lord, the matter has finished within a day and therefore I submit it is most conveniently dealt with by summary assessment.

MR JUSTICE SULLIVAN: Certainly.

[29]MR KOLINSKY: The Secretary of State's schedule reached a total of £9,144 and I would seek an order for that amount. My Lord, I can deal with any points --[30]MR JUSTICE SULLIVAN: Well, in terms of amount, that is quite a lot for a one day case. I know it has gone on for half a day; never mind that, we have had to knock off something for the hours, but that is quite a lot. Well, it was only yesterday I did a CPO case where the poor Treasury Solicitor had to trawl through pages and pages and pages of handwritten grounds to try to extract what the grounds were and make all sorts of investigations. I mean, this is not a case where the Treasury Solicitor had to potter off to the Inspector and get a witness statement or anything. Why is it £9,000?[31]MR KOLINSKY: Well, there is an itemisation of it. I will deal with my Lord's point. Obviously it is a case, as is every case, where the Treasury Solicitor needs to appropriately take stock of the merits of the case and this was a case where, although the grounds were not quantified, by my calculation they were in the region of ten grounds, all of which need to be considered by the Secretary of State. There was a process of obtaining instructions from the Inspector, although the view was finally taken that there was not the need for a witness statement and that there was also the involvement of counsel at an advisory stage, which obviously did increase the costs. My Lord, there was a very comprehensive bundle that was put in. Now, my Lord has taken a clear view as to the materiality of some of that but obviously, having been put in, it was a matter that the defendant needed to consider and take stock of and so that no doubt did increase the cost.[32]Now, my Lord, I appreciate ultimately it is matter for you. The defendant's schedule maybe falls to be assessed on its own terms but by way of a comparison --[33]MR JUSTICE SULLIVAN: I do not have the defendant's schedule -- or maybe I have. Have I got it somewhere?[34]MR KOLINSKY: My schedule, the first defendant's schedule, falls to be assessed on its own terms but by way of a comparison, if one leaves out the VAT elements, because that is not comparable, the claimant's schedule is two and-a-half times the defence schedule and that comes to £25,000 in costs. Now, I appreciate that --[35]MR JUSTICE SULLIVAN: I had not seen that. I am sorry, I do not know that I have it. It may well have been supplied but it just --[36]MR OAKLEY: My Lord, we do not have my learned friend's schedule.

MR JUSTICE SULLIVAN: You have not had it?

[38]MR OAKLEY: No. We have Linden Homes' schedule.[39]MR KOLINSKY: I am instructed it was served on the claimant's solicitors on Wednesday and we understand it to have been discussed with the solicitor.[40]MR OAKLEY: Do you have a copy?[41]MR JUSTICE SULLIVAN: You must clearly have a proper opportunity, Mr Oakley, to consider it, not least -- I will be blunt about it -- because there are lot of hours at £200 a hour and I would expect, perhaps, a lot of hours for someone who was less experienced and therefore less expensive but I am surprised a case of this kind needed that number of hours from someone quite as senior within the Government legal service and that is my concern. There is a heck of a lot of hours there and I simply do not understand how anyone actually could really -- no disrespect but I am a bit surprised.[42]Right, anyway, that is your application. Mr Oakley, you have not really had a chance to consider this but I myself am unhappy about the total cost for a one day planning case. I realise your schedule apparently is very much greater but that is not necessarily an indication as to whether the Government's schedule is reasonable. Can I just check, do you want time to consider this with your solicitors? I would have thought you -- well, it is a matter for you whether you do. I am quite happy to come back at 2 o'clock, although that may simply push up the number of billable hours, I suppose. I do not know if people charge over lunch. Maybe they do, to go into lunch.[43]MR OAKLEY: Well, of course, insofar as we three are concerned, we have a brief for the day. I was going to ask that, my Lord, and I would be grateful if we can discuss this at 2.00.[44]MR JUSTICE SULLIVAN: I think it might be better if you, possibly you and Mr Kolinsky, should have a discussion about it. Can I just check, Mr Taylor, are you making an application for costs in this case nor not?[45]MR TAYLOR: My Lord, I am not making an application for costs. I do however have an application regarding abridgment of time to appeal for permission to appeal but obviously we have not got that far yet. But that is the only matter I would probably wish to address you on.

MR JUSTICE SULLIVAN: Are you going to be applying for permission to appeal?

[47]MR OAKLEY: Yes please, my Lord.

MR JUSTICE SULLIVAN: Yes?

[49]MR OAKLEY: I see the eye movement.

MR JUSTICE SULLIVAN: What is the ground on which you wish to entertain the Court of Appeal?

[51]MR OAKLEY: It is always difficult, having been scribbling down some notes as your Lordship was speaking, but certainly the interpretation of the archaeological policy points in line with Cranach(?) and also the point about the application of the Traffic Regulations 1999 and how those factor into the overall scheme of things. Now, my learned friend, I fully appreciate, is apparently keen to proceed because of some options which are relevant to this development which are coming to an end soon. He is suggesting that if, as I suspect your Lordship is going to refuse permission now, the future time limit be abridged to seven days because of these options. Now, bearing in mind that it of course August and things are a little bit quiet, I would not have any particular difficulty with complying with that. However, I would ask my Lord -- I see that the shorthand writer is here. I would ask, please, if it is possible a proper transcript of the judgment could be made available at an early stage.[52]MR JUSTICE SULLIVAN: Well, I think there probably would not be any difficulty about that but equally, you have been here, so if there is any arguable error of law, you would have been able to identify it and tell the Court of Appeal about it before you get the transcript. That will come along as more power to your elbow at a later stage.[53]MR OAKLEY: It is purely a matter of personal convenience. I appreciate it is not essential.[54]MR JUSTICE SULLIVAN: Well, I am not going to expedite the transcript. In general terms, it will come anyway. I think what we will do is we will deal with that, Mr Taylor, because it may be that after lunch you will not want to appear.[55]Mr Oakley I refuse you permission to appeal. As I have indicated, I think both of the grounds are wholly misconceived and the case is totally without merit and so that is the basis on which I am not satisfied there is any realistic prospect of an appeal succeeding. So I refuse you permission and certainly, given their indication and given Mr Taylor's indication, if you are to make an application to the Court of Appeal for permission to appeal, I abridge your time for doing that to seven days.[56]MR TAYLOR: My Lord, I am obliged. In that case, if I could be excused from attending at 2.00.[57]MR JUSTICE SULLIVAN: Yes, of course. Well, what we will do is we will come back at five past two. May I suggest that there is possibly some discussion of the -- actually, let us make it quarter past two, I do not see why people should not have some time to have some lunch as well as have a discussion, and it may be that there is an explanation which can be given of these number of hours and, if there is, it is probably more sensible that it is given, as it were, between the parties and if the parties are satisfied with it then I can be too, rather than have it all argued out in open court. So, let us come back at quarter past two and deal with the matter of costs. (A short break)[58]MR OAKLEY: My Lord, I am pleased to say that we have reached agreement on costs at 7,000.[59]MR JUSTICE SULLIVAN: Good. Not unadjacent to the sum I was thinking of myself, I must say. So the application is dismissed and permission to appeal is refused. The claimants are to pay the first defendant's costs, summarily assessed in the sum of £7,000.[60]MR KOLINSKY: Thank you, my Lord.[61]MR OAKLEY: 28 days, my Lord?[62]MR JUSTICE SULLIVAN: I think if I do not say anything, the normal provision applies. It is payment within -- I cannot remember how many days.[63]MR OAKLEY: We can pay it in 28 days.[64]MR JUSTICE SULLIVAN: Right. To be payable within 28 days then, I will include that.[65]Any more for any more? Thank you both very much indeed.