Seventeen De Vere Gardens (Management) Ltd, R (On the Application Of) vThe Royal Borough of Kensington And Chelsea [2016] EWHC 2869 (Admin)

[2016] EWHC 2869 (Admin)

Case No CO/1377/2016

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

PLANNING COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/11/16

Before

MR JUSTICE HICKINBOTTOM

Between

THE QUEEN ON THE APPLICATION OF SEVENTEEN DE VERE GARDENS (MANAGEMENT) LIMITEDClaimant

THE ROYAL BOROUGH OF KENSINGTON AND CHELSEADefendant

Christopher Jacobs (instructed under the Direct Access Provisions) for Claimant

Mark Westmoreland Smith (instructed by Tri-Borough Legal Services)

for Defendant

Hearing Hearing date: 8 November 2016

Judgment Approved

Mr Justice Hickinbottom :

Introduction

[1]In these proceedings, the Claimant challenges the decision of the Defendant local planning authority (“the Council”) dated 8 March 2016 to decline its application for retrospective planning permission for pigeon-deterrent netting to the rear areas of 17 and 21 De Vere Gardens, London W8.

[2]That decision was taken under section 70C of the Town and Country Planning Act 1990 (“the 1990 Act”), inserted by section 123(2) of the Localism Act 2011, which, under the heading, “Power to decline to determine retrospective application”, provides:

“(1) A local planning authority may decline to determine an application for planning permission for the development of any land if granting planning permission for the development would involve granting, whether in relation to the whole or any part of the land to which a pre-existing enforcement notice relates, planning permission in respect of the whole or any part of the matters specified in the enforcement notice as constituting a breach of planning control. (2) For the purposes of the operation of this section in relation to any particular application for planning permission, a “pre-existing enforcement notice” is an enforcement notice issued before the application was received by the local planning authority.”

[3]Before me, Christopher Jacobs has appeared for the Claimant, and Mark Westmoreland Smith for the Council. At the outset, I thank them for their contribution.

The Factual Background

[4]The Claimant owns the freehold title to 15 and 17 De Vere Gardens, which are broken into flats, held on long leasehold or statutory tenancies. The properties are next to one another, on the east side of the street. No 21 is on the other side No 17 from No 15.

[5]In 2010, as part of a re-development project, work began on the demolition of two hotels on the west side of the street, opposite the properties. Pigeons, which had nested in the hotels for many years, were driven out and began roosting in the eaves and roofs of the properties, and particularly in the gap between No 17 and No 21. This resulted in substantial pigeon droppings falling on the windows, window sills, pipes, cables, wires, patios and ledges of the properties.

[6]In December 2013, with the agreement of the owners and occupiers of No 21, netting was erected across the rear of Nos 17 to 21. The Claimant says that the netting has been successful in controlling the pigeon infestation, and there is no evidence to the contrary.

[7]The erection of the netting enclosure required planning permission, and none was sought. On 3 April 2014, the Council received a report that the unauthorised netting was in place, and an enforcement officer began an investigation.

[8]On 3 July 2014, C A Daw & Son Limited (“the Agents”), as agents for the Claimant, submitted a planning application to the Council, with the appropriate fee (“the First Application”). The following day, the Council sent a letter to the Agents, saying that the application was “insufficient” to be validated; and further information was requested, i.e. scale drawings. By virtue of article 7(1)(c) and 7(2) of the Town and Country Planning (Development Management Procedure) (England) Order 2015 (SI 2015 No 595), any application for planning permission must include a scale plan and drawings sufficient to identify the property or properties involved. By article 34(4), a “valid application” is one which satisfies all the relevant statutory requirements, including necessary plans and drawings. By article 34(2)(b), once a valid application has been received, the planning authority has eight weeks to determine it. There is no obligation to determine an application that, in contravention of the statutory requirements, is incomplete, and thus not valid.

[9]Those drawings would have been quite expensive to produce. In the event, having been specifically requested, they were not provided. Instead, in due course, the Agents were instructed by the Claimant to ask the Council to put the application on hold, as they were considering other options to overcome the pigeon problem; and the Agents did indeed pass on those instructions to the Council by telephone, confirming them by email on 6 August 2014. There was then a lull.

[10]On 22 October 2014, the Council emailed the Agents, as follows:

“…given the length of time and as the enclosure still remains in place with no completed application and as the requirements have not been forthcoming, the Council has no option, but to consider taking formal enforcement action. Unless the enclosure is removed or the planning application completed within 14 days of the date of this email, then formal enforcement action will proceed without further notice to yourself.”

[11]On 11 December 2014, following complaints from neighbours and the assessment of the unauthorised use by the Council’s enforcement team, the Council issued an enforcement notice, which stated that the notice was to take effect on “12 January 2014”.

[12]By virtue of section 174 of the 1990 Act, where an enforcement notice is served, there is a right of appeal to the Secretary of State who generally delegates the decision-making on such appeals to a member of the Planning Inspectorate. That is the only means to challenge such a notice (section 285(1) of the 1990 Act). An appeal has to be lodged by the date specified in the notice as the date the notice takes effect, and failure to appeal by that date is fatal to the ability to appeal.

[13]On 7 January 2015, the Claimant lodged an appeal against the notice issued on 11 December 2014; and the Secretary of State appointed Mrs Hilda Higenbottam BA (Hons) MRTPI (“the Inspector”) to determine the appeal.

[14]Certainly, by that stage, the planning application had lapsed. In Geall v Secretary of State for the Environment, Transport and the Regions

[1999] 78 P&CR 264

, another case in which the planning applicant failed to provide required plans and drawings after a specific request and the authority commenced enforcement proceedings, it was held that the applicant could not rely upon the planning application to defeat those proceedings; because it had, in effect, lapsed and was incapable of being revived.

[15]Of the statutory grounds of appeal set out in section 174(2), in the appeal in this case, the Claimant relied upon three, namely ground (a) that planning permission ought to be granted, ground (e) that the enforcement notice was not properly served as required by section 172, and ground (g) that the period specified in the notice for compliance fell short of what should reasonably be allowed. Furthermore, in what was really a sub-ground of (e), the Claimant maintained that the notice was a nullity, because the stated date on which it took effect was before the date on which the notice was issued.

[16]In respect of ground (e), in due course, the Inspector found that the notice had been properly served; and she also declined to treat the enforcement notice as a nullity, holding that the reference to “2014” in the date on which the notice was to take affect amounted to an obvious and immaterial typographical error. I need not refer further to those grounds. This claim concerns grounds (a) and (g).

[17]In respect of ground (a), the Claimant wished to argue that planning permission ought to be granted on its merits. However, ground (a) attracted a fee, because, by section 177(5) of the 1990 Act, where an appeal is made against an enforcement notice, the appellant is deemed to have made an application for planning permission “in respect of the matters stated in the enforcement notice as constituting a breach of planning control”; and, under regulation 10 of the Town and Country Planning (Fees for Applications), Deemed Applications, Requests and Site Visits) (England) Regulations 2012 (SI 2012 No 2920), a fee is payable on a deemed planning application. Furthermore, section 177(5A) of the 1990 Act provides that, where notice is given specifying the time in which the fee must be paid, then, if the fee is not paid within that time, the appeal so far as brought on that ground shall lapse at the end of the period.

[18]In this case, unfortunately, no fee was paid when the appeal was lodged, because the Agents had not appreciated that a fee was payable. Furthermore, although the Inspectorate emailed the Agents saying that a fee was due and was payable by 17 March 2016, the fee was not paid by that date either. That was a result of the person dealing with the application at the Agents going on holiday for a fortnight as soon as the application (fee-less) was lodged, without leaving anyone in charge of this matter. The appeal on ground (a) therefore lapsed in mid-March, and was thus doomed on this basis alone.

[19]As a result of the apparent difficulties with ground (a), the Claimant submitted that the Inspector should extend the period for compliance with the enforcement notice under ground (g), “to enable the outstanding application [i.e. the First Application] to be considered” (see, e.g., paragraph 4(b) of the submissions of 12 May 2015). As the written submissions evolved, the Claimant accepted that the First Application had lapsed, as a result of the failure to lodge the scale drawings on time; but it maintained the substance of the ground. Under ground (g), it then sought time, not to perfect the First Application, but rather to lodge an entirely new, complete application. For example, in paragraph 10 of its submissions of 16 June 2015, it was said:

“The Appellant would request that the appeal be allowed under ground (g) so that the deadline for compliance is extended by 9 months from the date of the determination of this appeal, to enable the application for pigeon netting at the appeal site to be re-submitted with the information requested by [the Council]. This would mitigate the prejudice caused by any rejection of the ground (a) appeal.”

That submission was repeated, in terms, in paragraph 13 of the Claimant’s submissions of 14 July 2015.

[20]The basis of the Claimant’s submission – by the time of the Inspector’s decision, its only submission under ground (g) – was therefore clear: the Claimant wished to have more time to comply with the enforcement notice, to enable it to lodge a further application for retrospective planning permission, “with the information that had been requested by [the Council]”, i.e. with scale drawings. The Claimant did not suggest that any new application would be different from the First Application, other than being complete.

[21]In her decision of 15 October 2015, the Inspector noted that the ground (a) appeal had lapsed due to non-payment of the fee (paragraph 13).

(g) , she said this:

“12. This ground of appeal is that the time given to comply with the notice is too short. The Council have given one calendar month for compliance. The appellant considers that he requires 9 months to comply. The justification given for an increase in the compliance period is to allow the determination of the outstanding application PP/14/041126 (or a re-submitted application, if deemed appropriate). A later submission by the appellant accepts that it will be necessary to resubmit an application for pigeon netting at the appeal site, with the information requested by the Council. 13. As I understand it the outstanding application PP/14/041126 [i.e. the First Application] was found by the Council to be invalid, as information required by the Council was not received. I also note that the ground (a) appeal, due to a non-payment of a fee, has lapsed in the current appeal. 14. The stated compliance period is limited, although to my mind adequate to physically comply with the requirements of the Notice. However, it would not be a sufficient period in which to submit a revised planning application. A period of 9 months appears excessive for the submission and determination of a revised planning application. I therefore consider a short increase in the compliance period, to 5 months, would allow a reasonable amount of time to enable the submission of a revised planning application or to remove the pigeon netting. 15. I also note that the Council has the power to further extend the period for compliance with the notice under section 173A(1)(b) of the 1990 Act as amended, should further information indicate that this would be appropriate. 16. For the reasons given above the appeal I conclude that a reasonable period for compliance would be 5 months and I will direct the enforcement notice is varied accordingly prior to upholding it. The appeal under ground (g) succeeds to that extent.”

[22]The five-month period provided for by the Inspector was due to end on 15 March 2016. On 4 November 2015, the Agents wrote to the Council, indicating that they were preparing an application, substantively the same, but complete, hopefully in sufficient time to give the Council the eight weeks given to it under the regime to determine the application (see paragraph 8 above).

[23]Although I appreciate that they had to have scale drawings made, it has to be said that the Agents did not act with all the speed with which they might have done; but, on 7 January 2016, they did submit a further application for retrospective planning permission (“the Second Application”). This application was accompanied by a site plan and relevant drawings, and was otherwise complete. The application was for precisely the same development as that the subject of the First Application and the enforcement notice. The only difference between the First Application and the Second Application was that the latter was complete and the former was not.

[24]On 20 January 2016, the Council decided that the application should be considered by its Planning Applications Committee (“the PAC”), rather than by an officer under delegated powers; and its Executive Director of Planning and Borough Development was notified to that effect. The following day (21 January 2016), the Director wrote twice to the Claimant, first, purporting to decline to determine the application under section 70C; then, presumably realising that he had no power to deal with the application, to ask the Claimant to disregard that first letter, and confirming that the application would be referred to the PAC after the period of public consultation.

[25]The application was scheduled to be considered at the 8 March 2016 meeting of the PAC. In the usual way, an officer’s report on the various applications before the committee (“the Officer’s Report”) was published on 26 February, and provided in good time to the counsellors who were committee members. In relation to the Second Application, after summarising the history of the application, including quoting the Inspector’s reasons for extending the time for compliance with the enforcement notice from one month to five months, the Officer’s Report quoted paragraph 14 of the Inspector’s decision (but in isolation, without the preceding two paragraphs). It then continued:

“6.5 A review of the planning application documents demonstrates that the development has not been revised. It is the same development which was the subject of the enforcement notice. Issues and balancing 6.6 As the development has not been revised and is the same as that which is the subject of the active enforcement notice the Council does not need to consider the planning merits of the development again. The Council is entitled to exercise its powers to decline to determine the application under section 70C of the [1990 Act]. There are no reasons why the Council should be required to consider the development again or grant planning permission or refuse planning permission. Importantly refusing planning permission for the planning application would provide the applicant with a fresh right of appeal and seeing out that appeals process would be likely to take between 6 months to 12 months more which will delay the enforcement process to the detriment of the character and appearance of the area and the living conditions of neighbouring occupiers. Officers have continued to receive complaints about the netting structure since it was erected.”

Issues and balancing

[26]At the meeting, having considered that report, the PAC declined to determine the application, indicating that it had decided to follow the recommendation in the Officer’s Report in that regard. On 14 March 2016, the PAC gave the following written reasons for its decision:

“The application is for the same development as that which is the subject of a pre-existing enforcement notice issued on 11 December 2014 and as such the Council may decline to determine this application for planning permission under section 70C of the Town and Country Planning Act 1990 (as amended).”

It is, of course, that decision which the Claimant seeks to challenge in this action.

[27]The claim was issued on 14 March 2016, coincidentally the same day as the Council gave its reasons for the decision. That day, Holroyde J made an order for interim relief, effectively maintaining the status quo. On 6 May 2016, Charles George QC sitting as a Deputy High Court Judge granted permission to proceed. The substantive application has thus come before me today.

[28]The written grounds are of some length; but, before me, Mr Jacobs has focused on the Officer’s Report, which was clearly at least influential in persuading the PAC to take the course that it did. Mr Jacobs’ core submission is that the officer materially misrepresented Inspector’s decision on the appeal under ground (g), and also materially misrepresented the correct approach to the exercise of the section 70C discretion with regard to the Second Application. The Law Introduction

The Law

[29]Before considering the grounds of challenge, there are three areas of law relevant to this claim, which I should briefly touch upon, namely(i) section 70C,

(ii) the proper approach to officer’s reports, and

(iii) the task of an inspector appointed to determine a section 174 appeal. I will deal with these in turn.

Section 70C of the 1990 Act

[30]I have already set out the text of section 70C of the 1990 Act (see paragraph 2 above). As Mr Jacobs emphasised, in respect of applications for planning permission in respect of matters which have already been the subject of an enforcement notice appeal, it gives planning authorities a discretion (“… a local planning authority may …”) to decline to determine.

[31]The provision was introduced as part of a raft of measures to prevent the final determination of planning issues being delayed as a result of multiple (and often successive) applications, notably the insertion of new sections 70A (“Power to decline to determine subsequent application”), 70B (“Power to decline to determine overlapping application”), and 174(2A) and (2B) (“Appeal against enforcement notice”), as well as section 70C, into the 1990 Act. Those measures recognised that, in respect of many planning issues (but particularly in relation to enforcement), it may be in the interest of one or more parties to delay an outcome. Section 174(2A) and (3A), in particular, provide:

“(2A) An appeal may not be brought on the ground specified in subsection (2)(a) if: (a) the land to which the enforcement notice relates is in England, and (b) the enforcement notice was issued at a time (i) after the making of a related application for planning permission, but (ii) before the end of the period applicable under section 78(2) in the case of that application. (2B) An application for planning permission for the development of any land is, for the purposes of subsection (2A), related to an enforcement notice if granting planning permission for the development would involve granting planning permission in respect of the matters specified in the enforcement notice as constituting a breach of planning control.”

Those are specifically designed to prevent the same planning issues being considered in each of two parallel processes, i.e. the enforcement notice process and the planning application process. (a) the land to which the enforcement notice relates is in England, and (b) the enforcement notice was issued at a time (i) after the making of a related application for planning permission, but (ii) before the end of the period applicable under section 78(2) in the case of that application.

[32]Thus, in respect of section 70C, as Lewis J recently emphasised in R (O’Brien) v South Cambridgeshire District Council

[2016] EWHC 36 (Admin)

at [41] and [44]:

“41. … [T]he logic of the provision is clear. The aim is to ensure that the applicant cannot insist upon having two separate considerations of the underlying merits, namely by having a right to appeal any refusal of planning permission and a right to appeal against the enforcement notice on the ground that planning permission should be granted. The intention is that the applicant cannot insist on more than one determination of the underlying planning merits of the development. That is the mischief, or abuse, that section 70C of the 1990 Act is intended to remedy. … 44. … The Claimant is able to insist upon only one consideration of the underlying planning merits of the development, and that is done by appealing against the enforcement notice. If the Claimant subsequently makes an application for planning permission for that development, the planning authority is not obliged to determine that application. The planning authority has a discretion to do so (for example, where the development plan has changed, or some other material planning considerations have changed, so that the underlying planning merits may be different and it may be appropriate to grant planning permission for the unauthorised development).”

As Cranston J pithily put it in R (Wingrove) v Stratford-upon-Avon District Council [2015 EWHC 287 (Admin) at [21], so far as merits are concerned: “[T]he applicant cannot have multiple ‘bites of the cherry’”.

[33]However, where the relevant merits have not been determined, section 70C is not designed to prevent them being considered. Thus, in Ioannou v Secretary of State for Communities and Local Governments

[2014] EWCA Civ 1432

, it was held that, in an enforcement appeal, it is open to an inspector to grant an appeal under ground (g) to allow time for a planning application to be made for something outside the development with which the notice itself is concerned. Sullivan LJ, giving the judgment of the court, said (at [38]):

“If, as in the present case, an alternative scheme is put forward which is not part of the matters stated in the enforcement notice as constituting a breach of planning control, but which the Inspector considers may well be acceptable in planning terms, he can follow the course which the inspector adopted in the present case: allow the appeal under ground (g) and extend the period for compliance with the notice so the planning merits of the alternative can be properly explored.”

That is not in conflict with the aims and purpose of section 70C. The main proposition derived from Ioannou, so far as the issues in this claim is concerned, is that for an inspector to allow an appeal under ground (g) to allow an appellant time to bring an effective appeal under ground (a) is not in itself incongruous; and, dependent upon the circumstances, it may be entirely appropriate.

[34]Ioannou concerned a situation where an appeal under ground (a) could consider an alternative development from that covered by the enforcement notice. However, in O’Brien, Lewis J gave such a material change in the development as only an example of when it might be appropriate to exercise the discretion under section 70C to allow a planning application to proceed, after there has been an enforcement notice appeal. Those are clearly not the only circumstances in which it would be appropriate. In Wingrove (at [21]), Cranston J cited with approval a passage from a learned article by Professor Michael Purdue (“Reform of the enforcement of planning control – where are we now?” [2012] JPL 795), which itself quoted the Secretary of State to the effect that section 70C is there to “protect the gormless but deter the greedy”; so that, in exercising the wide discretionary power under section 70C, “a claimant’s actual motives to use a retrospective planning application to delay matters is clearly a consideration in favour of a decision to invoke section 70C” (see [31]). Cranston J suggests, therefore, that bad advice, or a lack of awareness of the opportunity to appeal the enforcement notice, would be relevant in that context (see [32]).

The Proper Approach to Officer’s Reports

[35]As I have described, at the core of Mr Jacobs’ submissions are criticisms of the Officer’s Report for the 8 March PAC meeting. The relevant legal principles relating to such reports are uncontroversial. I set them out in R (Zurich Assurance Limited trading as Threadneedle Property Investments) v North Lincolnshire Council

[2012] EWHC 3708 (Admin)

at [15], as follows: “Each local planning authority delegates its planning functions to a planning committee, which acts on the basis of information provided by case officers in the form of a report. Such a report usually also includes a recommendation as to how the application should be dealt with. With regard to such reports:(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the report, particularly where a recommendation is adopted.

(ii) When challenged, such reports are not to be subjected to the same exegesis that might be appropriate for the interpretation of a statute: what is required is a fair reading of the report as a whole. Consequently: ‘[A]n application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken’ (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

(iii) In construing reports, it has to be borne in mind that they are addressed to a “knowledgeable readership”, including council members “who, by virtue of that membership, may be expected to have a substantial local and background knowledge” (R v Mendip District Council ex parte Fabre

(2000) 80 P & CR 500

, per Sullivan J as he then was). That background knowledge includes ‘a working knowledge of the statutory test’ for determination of a planning application (Oxton Farms, per Pill LJ). ‘[A]n application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken’ (Oxton Farms, Samuel Smiths Old Brewery (Tadcaster) v Selby District Council (18 April 1997) 1997 WL 1106106, per Judge LJ as he then was).

The Role of an Inspector

[36]The difference between the role of a planning authority, and that of quasi-judicial planning decision-makers such as the Secretary of State (or an inspector appointed by the Secretary of State) in determining (e.g.) a section 174 appeal, was recently considered by Lang J in R (Hawkesworth Securities PLC v Peterborough City Council

[2016] EWHC 1870 (Admin)

, a case concerning (amongst other things) sufficiency of reasons. At [87], she said:

“Planning appeals are an adversarial procedure, akin to court or tribunal proceedings, in which opposing parties make competing submissions, and the decision-maker adjudicates upon them, giving reasons for his conclusions on the ‘principal important controversial issues’, limited to ‘the main issues in dispute’ not ‘every material consideration’ (per Lord Brown in South Bucks [District Council v Porter (No 2) [2004] UKHL 33] at [36]). In contrast, a local planning authority is an administrative body, determining an individual application for planning permission. Its reasons ought to state why planning permission was granted, usually by reference to the relevant planning policies. But it is not conducting a formal adjudication in a dispute between the applicant for planning permission and objectors, and so it is not required to give reasons for rejecting the representations made by those who object to the grant of planning permission.”

I agree with, and gratefully adopt, that analysis, which helpfully emphasises an important difference between planning decision-making by a planning authority, and that by an inspector on an appeal.

The Grounds of Challenge

[37]Although put in a number of ways, as I have already indicated, Mr Jacobs’ core submission was focused on the Officer’s Report for the 8 March 2016 PAC meeting. It was essentially simple.

[38]It is uncontroversial that the PAC not only took the Officer’s Report into account, but effectively adopted its analysis and conclusion in relation to the application of section 70C to the Claimant’s Second Application. Of course, there is nothing wrong in that. It is very usual. However, Mr Jacobs submitted that the Officer’s Report was fundamentally flawed, and materially misleading. It suggested that PAC had little, if any, discretion but to decline to determine a planning application if the relevant development had already been the subject of an enforcement notice, which had already been the subject of an appeal. The Inspector (the Officer’s Report further suggested) gave further time for compliance, to enable the Claimant, if it wished to do so, to lodge a “revised” planning application, i.e. a planning application that was materially different from the First Application. The Second Application was not “revised”, in that sense; and therefore, the report suggested, the PAC had little discretion but to decline to determine it. In any event, the Officer’s Report recommended that course.

[39]However, Mr Jacobs submitted, the Inspector had merely used the term “revised” application to mean “further” application, it was to be “revised” only in the sense that, unlike the First Application, it would be accompanied by scale drawing and therefor complete and valid. Given the context, the Inspector could not have had anything else in mind. Therefore, although the proposed development would be the same, the application in respect of it would be different – it would be complete with scale drawings – and it would be “revised”, in that sense. The PAC had discretion to determine a retrospective application in the circumstances of this case; and the Inspector extended time for compliance with the enforcement notice so that the Claimant could submit a further retrospective planning application, for the same development as the First Application, but in complete form. By recommending that the PAC refuse to determine the Second Application on its merits in the manner that the Officer’s Report did, misled the PAC as to(i) the purport of the Inspector’s views and decision on ground (g), which it undermined;

(ii) the material considerations that went to the decision to determine the application or decline to do so (which included the Inspector’s decision, on its true interpretation); and

(iii) the practical extent of the PAC’s discretion to proceed to determine it.

[40]Mr Westmoreland Smith disagreed. He submitted that the Inspector had found in favour of ground (g) so that the Claimant could, if so advised, lodge an application for retrospective planning permission that was “revised”, in the sense that the development which it proposed was materially different from that which formed the basis of the enforcement notice and the First Application. The proposition that an application for exactly the same development on exactly the same land as the development identified in the enforcement notice is or could be nonetheless “revised” has no arguable force. It would be unlikely, Mr Westmoreland Smith further submitted, that an extension of five months would have been granted if the Inspector had in mind only the lodging of an identical application, but complete with the necessary drawings. He accepted that the Inspector’s views were a material consideration in respect of the Second Application; but, he submitted, the Officer’s Report (and thus, in its turn, the PAC) did take into account the Inspector’s view that the Claimant ought to have time to lodge a revised application, in this sense. No such application was lodged. The PAC therefore exercised their wide discretion under section 70 lawfully, i.e. taking into account all material considerations and patently not irrationally.

[41]Indeed, he submitted, it exercised its discretion in line with the Council’s own policy. Paragraph 6.1. of its Procedure Note for dealing with enforcement-related applications states:

“Officers should ‘decline to determine’ an application for planning permission which is for a development which is already the subject of an existing enforcement notice, under section 70C…. This stops a developer/applicant from delaying matters by submitting an application for a development which the merits have already been considered in a previous enforcement report.”

In this case, planning officers had considered the merits of the development before issuing the enforcement notice.

[42]Mr Westmoreland Smith emphasised that the members of the PAC had before them more than the Officer’s Report. Members had the full Inspector’s decision, which was appended to that report. They also had the Claimant’s response dated 4 March 2016 to the Officer’s Report. They were therefore well aware of the Claimant’s interpretation of the Inspector’s analysis and conclusion in respect of ground (g); but they clearly preferred the construction set out in the Officer’s report, as (he submitted) they were entitled to do.

[43]Having considered Mr Westmoreland Smith’s submissions with care, I prefer those of Mr Jacobs. Indeed, in my view, Mr Jacobs has made the case good by some considerable distance.

[44]The starting point is the ground (g) appeal before the Inspector. As I have explained, it was her task to deal with the issues that had been raised before her. As an alternative to his “merits” appeal under ground (a), which in the event was bound to founder as a result of the non-payment of the fee, the Claimant submitted that the Inspector should extend time or compliance with the enforcement notice to enable it to lodge another application for retrospective planning permission, in essentially the same form as the First Application, but “with the information that had been requested by [the Council], i.e. with scale drawings. That was the sole basis upon which the ground was put forward: the Claimant did not suggest that any further application would be any different from the First Application, other than being completed in this way.

[45]The issue for the Inspector to determine was, therefore, assuming that ground (a) failed, should time for compliance be extended by allowing the appeal under ground (g), so that the Claimant would have time to lodge an application in that form. Paragraph 14 of the Inspector’s decision has to be read in that light; and, in particular, with paragraphs 12 and 13 which immediately precede it, which refer to the justification for an increase in time for compliance in terms of allowing time for a ground (a) appeal to be lodged with the information required and requested by the Council. Mr Westmoreland Smith submitted that the earlier paragraphs merely recited the Claimant’s request, before going on to the decision in paragraph 14 which was written in different terms, i.e. those of a (substantively) “revised” application. However, when looked at together, in my judgment those paragraphs are, on their face, unambiguously clear: paragraph 14 is referring to additional time to allow a ground (a) appeal to be lodged, complete with scale drawings.

[46]But, in any event, even if, contrary to my view, the Inspector’s decision is not clear on its face, it becomes abundantly clear when considered in its proper context, notably on the basis that the readership would be aware of the issues that were before her, including the (only) issue under ground (g). Looking at the matter in that way, as we must, “revised application” must mean (or, at least, include) a planning application for the same development as the First Application that was covered by the enforcement notice and its appeal, but, unlike that application, one which was complete with drawings. On the basis of what was before her, the Inspector could only have anticipated a new application in substantially the same form as the First application, but one that was complete. If Mr Westmoreland Smith were correct, the Inspector must have, without any sensible explanation, gone on a frolic of her own. There is no basis for considering that she might have done that.

[47]Therefore, in her decision, whatever “revised application” may mean in other planning contexts, as Mr Jacobs submitted, the Inspector must have intended “revised” to refer to a change in the application, not the development upon which the application was based.

[48]I see no force in the submission that the five-month period allowed by the Inspector indicates that she must have meant for there to be a more substantive revision than that: the time had to be sufficient to allow the Claimant to obtain and lodge the scale drawings, and for the Council to determine the application; and/or demolish the netting, and take any further steps that it might wish take to deter the pigeons. Mr Jacobs accepted that the three months in effect allowed by the Inspector for the Claimant to lodge the new planning application (to give the Council eight weeks to determine it) may have been generous – although not as generous as the approximately seven months sought – but the time allowed was a matter of judgment for the Inspector. In any event, when read in its proper context, in my judgment, for the reasons I have given, there is no ambiguity in what the Inspector meant in her decision by “revised application”.

[49]Consequently, as Mr Moreland Smith frankly conceded, the defence to this claim fails. It is true that delay in itself, whatever its cause, is a material consideration for a planning authority when exercising its discretion under section 70C; and, here, the Claimant and the Agents had not acted as expeditiously as they might. However, the Officer’s Report did not accurately reflect the Inspector’s views and decision in respect of appeal ground (g), i.e. that the Claimant should be given additional time to submit a complete application. In the light of the purpose of section 70C – and the comments of Cranston J in Wargrove, to which I have referred – the Inspector’s views and decision are understandable. The reason why the ground (a) merits were not considered in the enforcement appeal, was that the Claimant’s Agent failed to pay the requisite fee in time. Although I readily accept that an authority’s discretion under section 70C is wide, the officer was properly bound to consider the reasons for the fact that the planning merits were not considered in that appeal. Insofar as the Officer’s Report suggested that those merits were considered, it was clearly wrong. She did not do so. In any event, this was clearly not a case where the Claimant was seeking to manipulate the system: the reason that merits had not been considered was as a result of the Agent’s administrative failure to pay the relevant fee, apparently on the (erroneous) understanding that no fee was payable.

[50]The Officer’s Report was, therefore, materially misleading. Indeed, in simply accepting its analysis and conclusion, the PAC appears clearly to have been in fact misled. The fact that the PAC may have preferred the officer’s construction of the Inspector’s analysis on ground (g) is not to the point: that construction was wrong. As a result, the determination of the PAS to decline to determine the application on that basis was unlawful.

Conclusion

[51]For those reasons, I shall allow this claim. I shall quash the Council’s decision to decline to determine the Claimant’s application for planning permission dated 7 January 2016 (i.e. the Second Application).

[52]The PAC must reconsider the matter, no doubt on the basis of a fresh officer’s report; and I shall order that no enforcement steps are taken until it has done so. The PAC will, first, need to consider whether to exercise its discretion under section 70C, i.e. whether to determine the substantive application, or decline to do so. That, of course, is a matter for the PAC itself, and not for me. However, given the Inspector’s views and decision on ground (g), as properly construed, as Mr Westmoreland Smith properly conceded, the PAC would not be able to decline to determine the application without giving reasons for so doing in the face of the Inspector’s decision.