Gillespie & Anor v Tewkesbury Borough Council [2011] EWHC 2679 (Admin)

Case No CO/8355/2010[2011] EWHC 2679 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre
Priory Courts
33 Bull Street
Venue BirminghamDate Thursday 3 rd February 2011
B4 6DS
Before
HIS HONOUR JUDGE MCKENNA
Between
MR & MRS GILLESPIEClaimantsTEWKESBURY BOROUGH COUNCILDefendantKINGSDELL PROPERTY LIMITEDInterested Party
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Hugh Richards (instructed by Williams LLP) appeared for Claimants.Miss A Clover ( instructed by Tewkesbury Borough Council Solicitor ) appeared for Defendant.Mr P Wadsley ( instructed by Bevans Solicitors ) appeared for Interested Party.
Judgment
[1]The claimants, Edward and Alison Gillespie, live in a house known as Rowanside, which is adjacent to White’s Farm in Gotherington. The defendant, Tewkesbury Borough Council, is the relevant local housing authority, and the interested party, Kingsdell Properties Limited, is the developer of land at White’s Farm on which it has built two detached houses. It did so relying on a planning permission granted by the defendant on 27 June 2008 under reference 88/00214/FUL.[2]In these proceedings the claimants allege that the planning permission in question is void for uncertainty, so that there is no permission for what has in fact been built. Alternatively, and this is the second claim, if the planning permission is not void for uncertainty and it is capable of sensible meaning, then what has been built is not in accordance with the June 2008 permission. In either case, if the claimants are right there has been a breach of planning control.[3]The claimants accept that it is for the defendant to determine what, if any, course of action should take place if it were to be found that the houses as built were in breach of planning control. Therefore by this action what the claimants seek is an order quashing the decision which has been made by the defendant to the effect that the houses as built are not in breach of planning and therefore not to take any enforcement action, and what is required therefore is an order to the effect that the defendant shall reconsider its decision not to take enforcement action. It is accepted that this court should not, or will not, order that enforcement action be taken since that is a matter for the defendant.[4]The basis upon which the claimants assert that the planning permission is void for uncertainty are inconsistencies in floor levels and building heights shown on various plans and described in the application documents incorporated into the permission which, it is argued, makes it impossible to attribute a sensible meaning to the permission.[5]The background facts are helpfully set out both in the claim form at pages 12 and 14 in the bundle and also in the helpful first skeleton argument produced by Mr Richards, counsel for the claimants. The houses built are approximately 8.5 metres in height from threshold to ridge line. The planning permission, which is at pages 20 and following, permits in terms the development described thereunder in accordance with the submitted application and the accompanied plans but subject to conditions there under stated. The description of the development is “erection of two detached houses and garages” and in the notes, forming part of the permission, it is provided that “this decision relates to the revised plans received by the local planning authority on 22 May 2008.” There are a number of conditions set out in the planning permission, but none relate to the approved plans in terms of ridge heights.[6]The submitted application form, which is at page 30 of the bundle under the heading "Height", states that the height of the new development will be 7.6 metres. The revised street elevation plan (page 36 in the bundle) shows a floor level of 57.500 for the two proposed houses, whilst the floor level for Rowanside is shown as 57.580. The ridge height of Rowanside is shown on the plan by means of a projected solid line, which shows the height to be broadly the same height as the two new properties. The properties now built have been surveyed and the claimants assert that the floor levels of the properties as compared to Rowanside is about a good 0.610 metres whilst the defendant I think says 0.41 metres above and to be compared with the approved drawings which show the difference in floor level to be point eight metres . It is also suggested that at ridge level, if that is the best way to describe it, there is a discrepancy of one point four metres; is it, Mr Richards?[7]Mr Richards: 1.4/1.7, I think.

Judge McKenna: Between 1.4 and 1.7, thank you very much.

[9]It is right to record that there is a long and involved history to the question of planning for the erection of houses on this particular site, and the claimants’ counsel in his skeleton argument makes reference to previous proposals having been rejected by the inspector on appeal in November 2007, at least in part on the basis that the development as then proposed, which of course is a different development to that with which this court is now concerned, was rejected at least in part because the roof heights of what was then proposed were significantly higher than Rowanside.[10]Once it was appreciated that there were discrepancies, as Mr Richards describes them, between what was built and what was set out for instance in the street elevation plan, a revised planning application was submitted by the interested party, or on the interested party’s behalf, to the defendant to seek consent for what was actually built. In the event, that application was withdrawn before it went before the relevant committee; thus at page 46 and following in the bundle there appears an officer’s report prepared for the relevant committee which recommended refusal. After making references to consultations and representations and setting out the planning history, at paragraph 3.2 the officer said as follows:
"The current application seeks to regularise the development as the dwellings have not been built in accordance with plans permitted under planning reference (08/00214/FUL). The discrepancies are a result of inaccurate plans originally submitted including the original survey drawing and street elevation drawing. New survey plans show that the levels adjoining property known as ‘Rowanside’ which is now stated as being 57.037m as opposed to 57.580m as shown on the approved plans. It also transpires that the ridgeline of ‘Rowanside’ was shown incorrectly and following accurate survey measurements As a consequence of these inaccuracies, the new development is now higher than ‘Rowanside’ and Plot 1 is approximately 1.2m higher. Velux roof lights have also been added to the rear elevation of each plot to provide a playroom/storage at second floor level."
[11]Under “Conclusion” the officer said as follows: "In view of the above, it is considered that the proposal fails to respect the existing form and character of the surrounding residential area and is therefore harmful to the character of the area and street scene. As such, the proposal is recommended for refusal. Members may recall that this application was deferred at the Committee in October in order to assess the information provided by the applicant in respect of the floor levels. The agent stated that the dwellings have been built in accordance with the previously approved plans and the stated heights of the new dwellings in the report are inaccurate. He concedes that there was an error in plotting ‘Rowanside’. He also states that there is no increase in ridge height and the only change is the relationship with ‘Rowanside’. […] In conclusion, it is considered that the proposal fails to respect the existing and character of the surrounding residential area and is therefore harmful to the character of the area and the street scene. As such, the proposal is recommended for refusal. Members should note that if the permission is refused, enforcement action will be instigated.”[12]It is clear that at March 2010, as appears from an email sent to the claimants by an officer of the defendant, that at that stage the local authority, on the basis that it had advice from its solicitor, took the view that due to the inaccuracies in the plans there was no valid planning permission. That position, however, had changed by early May 2010, as appears from the further e-mail written by the Council’s development control manager, which is at page 62 in the bundle. The effect of that was to notify Mr Gillespie, as a result of further advice obtained by the defendant, that its then position was that there was no breach of planning legislation and therefore the defendant did not intend to pursue enforcement action.[13]The relevant law is not an issue of dispute between any of the parties. The law relating to breaches of planning control are set out in the Town and Country Planning Act 1990 as amended, and section 171A provides “Expressions used in connection with enforcement”: "1(1) For the purposes of this Act—(a) carrying out development without the required planning permission; or(b) failing to comply with any condition or limitation subject to which planning permission has been granted, constitutes a breach of planning control.”[14]It is common ground that section 171(A) (1) (b) is not engaged, and therefore if the claimants are to succeed it must be under subparagraph (a). As I have already indicated, the claimants’ primary submission in this regard is that there is a hopeless uncertainty, the effect of which is to make the permission void, since when read together -- the application and the plans and so forth -- it is simply not possible to reach a conclusion as to what is permitted. In the alternative it is said that the development has not been built in accordance with the street elevation plan because the relationship with the neighbouring property is incorrectly depicted, and that is a key element in the permission. Thus it is to be noted that the problems arise not from non-compliance in the construction of the two properties in question, but because one of the plans incorrectly shows the relationship between the properties to be constructed and the neighbouring property, Rowanside. Specifically the drawings appear to show that Rowanside was 1.4m higher than it really is.[15]In cases of ambiguity in relation to planning permission the approach of the court is clearly established. Again, this is accepted as common ground by the parties. The court will strive to overcome any difficulty in giving words in a planning permission some meaning the relevant authority being that of Lord Denning in Fawcett Properties Ltd v Buckinghamshire County Council [1961] AC 636).[16]It is urged upon me that the approved plans and the application form, the one providing for 8.5metres and the other 7.6, are inherently inconsistent, so when read together it is simply not possible to reach a conclusion as to what is permitted, such that permission is void from uncertainty, no matter how hard one has tried to find a sensible meaning.[17]Moreover, it is said on behalf of the claimants that plan shows both ridge lines, and what is approved is a building in Plot 2 which is higher than the ridge line on Rowanside. For my part I do not accept the thrust of counsel for the claimants’ submissions on this issue. I prefer the submissions made by counsel for the defendant. To my mind it is perfectly obvious that the revised plans of May 2008 contained the updated information upon which the development was to be based, and there is no realistic confusion that can be caused by virtue of the earlier application. The permission can readily be given a clear meaning by the simple recognition of the fact which is apparent on the face of the decision that the permission relates to the revised scheme set out in 22 May 2008 plans, which clearly supercede the earlier plans.[18]The issue is simply whether the development permitted has been built to the dimensions set out in the approved plans. The permission does not require the development to meet specific conditions arising from its relationship with another building, ie Rowanside. I am not persuaded by the argument that the defendant had intended to exclude the application given that it could have done so, nor that if the defendant wanted to exclude any rights of the submitted plans it could have done so. The argument could equally be of course the other way. The defendant could have imposed a condition as to the relative position of the two houses and Rowanside; it could have done but it did not. This is not to my mind a case of treating the street elevation plans as in some way subsidiary to the other plan or indeed of rewriting the planning permission. Ground 1 therefore, to my mind, has no prospect of success at all.[19]As for Ground 2, again I accept the submission of the defendant. The way in which the claimants put the issue is somewhat artificial. The issue is whether the development has been built in accordance with the dimensions contained in the approved plans for development, and I conclude that they have. As Ms Clover puts it, in the application the red line went around the site containing the two new dwellings and their garages and did not include Rowanside. The application before the planning authority did not relate to any proposed development concerning the land adjacent to the site, still less to Rowanside in particular.[20]Whilst the relationship between the new development authorized by the permission and Rowanside was one relevant factor and could have been the subject of a condition confirming the relative position of the new dwellings and Rowanside the fact that no condition was imposed is to my mind a telling one. On Ground 2, therefore, I find against the claimants. It is also actually worth recalling that on the issue of Ground 1 as at June 2008 that the claimants themselves were in no doubt as to what was being authorized or proposed, because they actually say as much in a letter to the local authority when challenging what Mr Gillespie described as the revised application.[21]Having concluded that the claimants do not succeed on either Ground 1 or Ground 2, I do not need to go on to consider the further issues which would have arisen had I found in favour of the claimants on either of Ground 1 or Ground 2, that is to say delay and the question of whether or not there has been prejudice and of course the question of expediency, and I do not therefore propose to deal with those in any detail; but for the record it is worth highlighting the undue delay in making the application and that had I found in favour of the claimants on either of the two grounds, on the issue of expediency, I would have concluded in favour of the defendant for the reasons set out by Ms Clover in her helpful skeleton argument.[22]For all these reasons therefore I dismiss this claim.