Sykes v Cheshire West & Chester Borough Council [2018] EWHC 3655 (Admin)

[2018] EWHC 3655 (Admin)Case No CO/2352/2017Venue IN THE ADMINISTRATIVE COURT AT LEEDSCourtroom No. 15The Courthouse1 Oxford RowVenue LeedsWest YorkshireLS1 3BG4.03pm – 4.58pmDate Tuesday, 19 th December 2017
Before
HIS HONOUR JUDGE MARK RAESIDE QC
Between
SykesClaimantCheshire West & Chester Borough CouncilDefendantB E T W E E N:MR CLIVE SYKESandCHESHIRE WEST & CHESTER BOROUGH COUNCIL
MR J DARBY appeared on behalf of the ApplicantMISS C BELL appeared on behalf of the Respondent
JUDGMENT(Approved)HHJ RAESIDE QC:

Introduction

[1]This is a Town and Country Planning judicial review case brought by which Clive Sykes, who as a neighbour, seeks to challenge a decision of Cheshire West and Chester Borough Council made on 7 April 2017, by which they granted planning permission for the demolition of an existing boathouse and the erection of a Community Watersports Hub at the Rowing Club, Lower Park Road, Chester, which in fact was owned by Cheshire West and Chester Borough Council. Clive Sykes seeks to quash that decision and have the matter remitted to Cheshire West and Chester Borough Council’s planning authority for another determination.

Procedural Background

[2]On 17 May 2017, Clive Sykes, from his address at 19 Lower Park Road, Chester, issued a judicial review claim form through his legal representative, David Walton of Walton & Co (Planning Lawyers) Ltd, who instructed Jonathan Darby of counsel. The decision challenged, dated 7 April 2017, granted planning permission (16/05188/FULL) to Cheshire West and Chester Borough Council, and the relief sought(1) permission to proceed with judicial review and(2) an order of the court that the planning permission be quashed and the matter remitted.[3]The claim form attached to the statement of facts and grounds settled by Jonathan Darby is dated 16 May 2017, and so far as relevant before this court, there remained the following: Ground 1 Failure to consult on a submission of last-minute information altering the nature of the application. There was no opportunity for the public to make representations on the additional late information. It referred to the defendant being required to ‘act fairly’ in determining planning matters, and the failure to consult on highly material amendment, which is plainly contrary to rules of natural justice. In short, the defendant should have allowed consultation. Simply publishing the additional late information on the day of the committee meeting did not constitute consultation, nor did it provide a fair or adequate opportunity to provide comments; Ground 3(A) Failure of the defendant to draw attention to the material considerations, namely the Environmental Protection Team advice that a full assessment was needed in order to fully understand the noise impact of the proposal; Ground 4 A mistake of fact, namely that members erroneously believed (or were misled) that the various consultative responses had been provided in the full knowledge that the wider public would have access to the facility.[4]On 17 May 2017, David Richard Walton, a solicitor at Walton & Co, produced a witness statement exhibiting the following documents:(1) site plan;(2) design and access statement;(3) plans submitted as a part of the application;(4) representations on behalf of the claimant, dated 17 February 2017 and 3 April 2017;(5) officer’s report to the committee;(6) statement for the committee meeting, 4 April 2017;(7) additional late information document published on 4 April 2017;(8) decision notice 16/05188/FULL, dated 7 April 2017... (11) Environmental Protection Team comments, dated 6 March 2017, and (12) Highway officers comments dated 11 April 2017.[5]On 8 June 2017, Cheshire West and Chester Borough Council served an acknowledgment of service and attached the defendant’s summary grounds of resistance settled by counsel, Constanze Bell, and dated 8 June 2017. It was asserted that the planning application statement did not suggest it was a ‘members only’ condition, and so far as relevant, the response to ground 1 was there was no failure to consult, and the submission of late information did not ‘alter the nature of the application’, but rather corrected an error in the report. The response to ground 3(A) was that the law does not require an officer’s report to recite every single consultation response and propose conditions at length; Respond to ground 4: Committee were not advised that there was an understanding that the facility was a private facility, but rather were informed that there was a question as to this regard, and the application was for a Watersports Hub and not a members only private facility.[6]On 14 June 2017, Her Honour Judge Belcher, sitting as the Judge of the High Court, granted permission on grounds 1, 4 and 3(A) and made certain case management directions allowing for the defendant’s detailed grounds of resistance, dated 18 July 2017, again settled by Constanze Bell, and a witness statement, dated 19 July 2017, of Nial Casselden, a Planning Team Manager at Cheshire West and Chester Borough Council, together with a witness statement from Luke Peaker of the Highways Department, dated 19 July 2017. On 7 April 2017, Jonathan Darby of counsel settled the summary reply, which alluded to Authority’s duty to ‘act fairly’ in determining planning applications and that a failure to consult upon highly material amendment was contrary to the rules of natural justice.[7]The skeleton argument of Jonathan Darby is dated 24 November 2017. The skeleton argument of Constanze Bell is dated 4 December 2017. In addition to the file containing the documents referred to above, two further files of authorities have been provided by counsel. I propose to deal with this case in that order, namely setting out the background facts, then the disputed facts, followed the legal framework, followed by a discussion on grounds 1, and more shortly on 3(A) and 4, and the order.

Background Facts

[8]Clive Sykes’ house and garden at 19 Lower Park Road directly adjoins the existing boathouse and club grounds, and both face and run down directly onto the River Dee, separated only by towpath running along its southern bank.[9]On 10 November 2016, Cheshire West and Chester Borough Council issued a design and access statement for the Chester Community Watersports Hub. The statement made the following points: ‘Access and car parking: Vehicle access to the site is by means of a gate in a single lane track from the bend of the Lower Park Road/Elizabeth Crescent. There is a pedestrian access from the formal public footpath along the River Dee to the north-westerly boundary but there is no other formal designed footpath or cycle path route for the Lower Park Road’. ‘The local residents and public consultation feedback: In summary, matters raised with a written responses include the following; concern of traffic would increase on surrounding roads, concern become too social, late night opening etc., concern over conflict between a boathouse users and pedestrian walking along the towpath’. ‘Centre management and operation: Hours of operation of the centre will be 6am to 10pm as outlined in the planning statement. The last person to leave the existing water by 9pm. The social/educational area will not be open to the public; will be for club use only. The council will remain as the owner and landlord of the site and will ultimately be responsible for any issue relating to misuse of the facility’. ‘Social/educational area: It will not be run as a commercial space. Will not be open to the public. The servery will not be used as a bar. There will be no public bar on the existing Chester Royal Rowing Club site. There will be no requirement for one in the new building’.[10]Among the illustrations of the Chester Watersports Hub was the series of drawings prepared by Ellis Williams Architects with job number 2134 dated July and August 2016, showing the existing site planned, the proposed site planned and three elevational drawings. The drawing showed the existing boathouse set back from the River Dee with a concrete hardstanding adjoining the public towpath. Proposed new building location is right upon the public towpath next to the River Dee and is substantially larger than the existing building to be demolished. The new boathouse has a balcony area on the east side shown on one of the drawings and Clive Sykes property’ at 19 Lower Road is also shown, and this can be scaled at a known distance.[11]Cheshire West and Chester Borough Council issued a planning statement dated November 2016, and set out, after an introduction, the planning policy overview, the principle of the development and other planning considerations. The document contained the following: ‘1.02. The site is currently used as watersports facility and the application proposal represents an opportunity for a new and improved facility to be delivered on the site’. ‘2.08. The existing boathouse is not fit for purpose and requires redevelopment in order to cater for the needs of the users and the local community’. ‘4.05. Strategies for city specifically support the delivery of a new community watersports facility in order to improve Chester’s leisure offer and to insist in making city of “destination” for waterway activities. The benefit of such a strategy to improve health and wellbeing of the local community is strongly recognised’.[12]On 17 February 2017, Walton & Co submitted an objection on behalf of Mr and Mrs Sykes that Chester Community Watersports Hub and made the following points: ‘1. Nature of development fundamentally it is not entirely clear what precisely is proposed by this application. We have raised a large number of questions relating to the nature of the use, the hours of use, the extent of the use within the red line and the long-term viability of the proposal. At the very, least this application is wholly premature without further clarification and detail in a relation to all these points’. ‘Noise: The use of the building for social activities (which is completely understated and not explained) has the potential to create noise and nuisance at all times of the year and particularly no doubt the weekends if social events are promoted’. ‘6.2. Fundamentally, it is not at all clear what is proposed in this development. The application is said to be for a “Waterhub” but that has no specific definition in the gazette... It is necessary (and the applicant has been asked) to establish precisely what events and uses are to take place within each proportion of the development so that the very least those elements (which must be precisely described) can be precisely conditioned’. ‘6.4. With the regards to the site as a whole, it is not clear whether the public are to be allowed access to the site as a whole, whether there will be external public events within the site, whether conditions will be imposed restricting the area from being let out for other public functions such as weddings/parties and other social events. The area is also used for training. Once again it is not clear when this will be utilised. It is understood that rowing areas can be used from 6am onwards potentially up to 12 o’clock’. ‘14.3. Additional noise will also be generated from proposed balcony area. The external terrace proposed is considerable size (circa 2.9m²), which will accommodate a very large number of people who in turn could generate significant amounts of noise, whether they are viewing the rowing or attending social events. In proximity of this the potential for noise to residential properties has not been properly addressed’.[13]On 6 March 2017, the Environmental Protection Team reported their observations and recommendations for this scheme. They noted under the heading Noise and Conditions respectfully as follows: ‘This unit is considered and submitted noise application contained land applications would make the following observations and recommendations’. ‘Although there is a current and existing facility at this location, it is due to be demolished and replaced by a larger facility aimed at attracting greater use. As such not only is there a need to consider noise associated with a new facility such as plant noise and car parking noise, there is also the need to consider the impact of people utilising the facility’. ‘Submitting noise assessment considers the impact of traffic associated with the development and the impact of plant noise arising from proposed new building. What the noise assessment has not assessed as the additional noise that will arise in the use of the site intensifies and its impact on nearby resident properties, most notably 19 Lower Park Road’. ‘Good management of noise climate will be fundamental nonetheless to minimise impact at this hour of the day and a unit will be recommended conditions requiring a noise management plan’. ‘It noted that there is public access to the river and a paved public footpath that runs along the river. Taking this into account and the current use from the site, the unit does not consider that any additional noise from increased use will be unacceptable where for there is a need to access what can be done to mitigate the impact of noise’. ‘Distance to the nearest garden from the new pontoon to is approximately 35m. Distance to the nearest habitable rooms are an additional 30m away, 65m away’. ‘The premises shall not be open then to the public between the hours of 7am and 10pm. Reason: to ensure that the residential amenities occupiers to can reasonably expect to enjoy are adequately protected’.[14]In preparing for the meeting Luke Peaker of the Highways Department reported as follows in an undated document: ‘The new facility could cater for, in addition to these the Royal Chester Rowing Club and used by invited schools/community groups’. ‘Given the unique nature of such a use, it is considered necessary to support a trip generation and analysis using data from the future user groups... The quoted trip generations for social facilities seem low, however, where it is restricted to members only and many of the trips will already be on site. Entirely new trips to use social facilities. Users consequently this is considered to be a robust and suitable approach to assessing the impact element in terms of trip generation and its junction impact. I have attached a condition to ensure that these facilities restrict it to its members use only and prevent it from being used for the function venue available generally to the public’.[15]On 3 April 2017, Walton & Co made further representations in respect of the scheme. The letter made the following points: ‘2.1. In our view the hours of operation remain highly anti-social given the proximity of the client property. It is likely those facilities will primarily be used outside normal working hours when our client will be “at home”’. ‘2.2. Without prejudice to our general contention that a proper assessment shall be required on the conditional resulting hours as suggested by EHO should be reworded as follows “The proposed gym facilities, function room and catering area indicated on the approved drawings shall be for use ancillary primary use of the building as a rowing club strictly for use by club members only and shall not be open for use by the general public’.[16]On 4 April 2017, Cheshire West and Chester Borough Council issued the officer’s report, which recommended approval. The application applicant was Jane Herrington of Cheshire West and Chester Borough Council. The case officer was Conor Perrett and the ward members were Councillor Razia Daniels and Neil Sullivan at whose request the scheme had been presented for planning committee. The official report provides the following matters: ‘2.8. The social space would be available for members of clubs only and not open for public’. ‘5.8. Will this community facility open to the public generally or a private facility?’ (which was one of the concerns of the 17 objectors from neighbour notification) ‘6.47. The Environmental Protection Officer accepts the methodology used to calculate the noise impacts as this relates to both plant and vehicle..’. ‘6.51. It is considered that this measure together with a provisional acoustic barrier would safeguard the general amenity of the residents and surrounding area and in turn ensure compliance provisions of policy SOC5 or Part 1’. ‘6.91. Documentation submitted in the application confirms that the facility would not be open to the general public. This, together with the proposed hours of operation, provides comfort that the facility would not be used as a function centre’. ‘7.6. Whilst the facility would operate later in the evenings, on the basis that it would be open to members of the occupying club only, it is considered that no adverse amenity impacts would result’.[17]Clive Sykes provides a short witness statement, the details of which are set out below.[18]On 4 April 2017, Cheshire West and Chester Borough Council provide additional papers to the planning committee meeting that day prepared by Nial Casselden, which included details of late information 1 as follows: ‘Community report makes reference to the proposed building being occupied by a number of local rowers/canoeing clubs. The report also states the building would not be accessible to members of the general public. Having discussed this point further with the applicant, please note that the building will in fact be accessible to members of the general public by way of the provision of the community program. This program may run independently of both the occupying clubs and participants would not need to be a member of any club to take part in the program’. ‘The report also refers to the facility being a “rowing club” on the basis of the provision of the aforementioned community program the facility may better be termed a ‘Community Watersports Hub’ as noted in the project website. This does not alter the use classed classification of the facility (D2) or the basis of the officer’s assessment for the appropriateness of the use of the location’.[19]A meeting took place on 4 April 2017, at which item 8 on the planning committee’s agenda was raised. A web cast contained recording of that meeting is available to this court. It is apparent from the face of that meeting who attended in addition to the officers, in addition to Mr Sullivan, Daniels and Jones of whom reference is made. There was also, I am informed, the following attendance: Messrs Garrett, Beckett, Blackmore and Hallbrook, Johnson, Ramsey, Watson, Whitehead and Wright, all of whom were counsellors, as I understand matters.[20]On 7 April 2017, under the provisions of the Town and Country Planning Act 1990, Cheshire West and Chester Borough Council gave notice of planning permission under 16/05188/FULL in respect of proposed demolition of the boathouse (Class D2) and erection of a Watersports Hub (Class D2) and associated parking access landscape and plant of the rowing club Lower Road, Chester. There was no condition in respect of the use of the Watersports Hub by members of the club only, so far as the material of the following conditions were imposed:
‘12. The hours of operation of the building shall not exceed 6 to 2200 hours seven days a week: Reason; to safeguard the general amenity of the residents and nearby residential properties’. ‘18. Prior to the use of building hereby committed to commence the noise management plan shall be submitted to the approval in writing by the Local Planning and Authority to ensure the best practise is followed to minimise noise... A plan shall also include details of its acoustic barrier installed along the boundary adjacent to the rear of garden 19 Lower Road. Reason: to ensure the amenity of occupiers in surrounding properties reasonably expect to enjoy and adequately protected’. ‘22. The use of the building shall not commence until an operation/event management plan has been submitted to an agreed inviting by the Local and Planning Authority. The plan shall include overall parking at Queens Park High School, the use of building thereafter shall be in strict accordance with the agreed details. Reason; the interests of highway safety and to minimise disruption of vehicles to traffic/pedestrian routes and protect the general amenity of local residents’
.

Disputed Facts

[21]Clive Sykes was unable to attend the meeting on 4 April 2017, because he, as with many others, was on Easter holiday. He does provide a short undated statement making his clear his position, namely, ‘There is a strong likelihood that the building will be used for party venue, car boot sales etc., when/if it becomes financially unviable’.[22]The meeting on 4 April 2017 attended by four councillors: Lindsey Skinner, the Senior Planning Officer; Paul Parry, the Principal Development Officer; Nial Casselden, the Planning Team Manager; and Luke Peaker of the Highways Department. As a matter of record, Conor Perrett did not attend and I have, in paragraph 19 above, indicated the ward members and councillors who did attend.[23]Luke Peaker, the Highways Development Officer, indicated in his witness statement that he discovered a change and explains his reaction as follows: ‘I subsequently found out that users would not be restricted by planning condition to members only, that it would be possible for licensing committee to restrict users by any license premises to members only in the event of the application for a premises licence’. ‘I spoke to Nial before the planning committee meeting about the Highways consultation clarification in additional late information report regarding the public nature of the centre. My real concern was the creation of a busy function venue use that would create highway problems. I was satisfied following my discussion with Nial that the risk of a “function venue” could be addressed by planning control. In that if there were to be a material change of use to a drinking establishment enforcement proceedings could be brought. Similarly, if any social use went beyond any ancillary level (to lawful D2 use) an enforcement action could be taken. Further, the use of any license social area and its operating hours could be controlled by way of a licensing condition attached to the premises licence and that could be a decision for the licensing committee. I attended the committee in support of the application’. ‘I would not attend planning committee and support an application where I have concerns about the proposed acceptability and in highway terms. I would bring any such concerns to members’ attention as my concerns have been laid. I did not ask members to consider a members only condition attached and the planning permission did not nor did I take up the issue with Nial (in addition to the further information report) and the recommendation to approve planning permission is subject to conditions listed at the end of the report’. ‘The committee was not misled regarding the highway position nor did they fail to have regard for material considerations. My proposed “members only condition” in that I no longer consider such conditions to be inappropriate or necessary’.[24]Nial Casselden, the Planning Team Manager, who prepared the additional late information report explained his approach to this change:
‘The use for the proposed building (D2) did not alter because this clarification relating to the late report clarified in clear terms that members of the public will be able to access the facilities’. ‘Included in the late information report was the supplementary condition relating to construction traffic. That proposed condition did not include one restricting use. The development of members only’
. At the meeting I clarified that the social area of development was to be ancillary to the D2 use. It was also noted that only a cafe bar would be subjected to a licensing regime and a license committee would impose conditions one the use of the premises’. ‘It was clear to me, both at the meeting and on reflection having reviewed the meeting footage, that it was understood that this was a public watersports centre with the questions of access to any license premises within the social area to be considered by the licensing committee’. ‘I did not see the additional late information report as being an amendment to the scheme but rather a clarification regarding the scheme. Having a regard to the consultation my conversation with Luke on the original planning application, I did not consider that a re-consultation was applicable’. ‘Planning practice guide is clear and the Local Planning Authority have absolute discretion in regarding whether to accept changes to an application, whether to re-consult or review a new application’. ‘If this planning permission were to be quashed and stood to be re-determined by the planning committee then the outcome would not be substantially different’. ‘Conditionally limiting use to members would not be appropriate for development, which is a community facility. A condition limiting use to members and community groups would be unenforceable, and that it would be [impractical to determine?] who is a member of the community group’. ‘Moreover, the existing law use is not unrestricted D2 use. There are currently no restrictions on uses. Given the logic of the application is to improve and replace the old boathouse, it would make no sense to introduce a user restrictive land use by way of a planning application’.[25]The web cast footage of the planning committee meeting records amongst other matters that Councillor Sullivan commented as follows, ‘I am pleased that it is stated that their potential licence would not involve the public and therefore social facilities would only be for club users, which I think is very important’. Same footage, Councillor Daniels says, ‘This community hub will be as the name suggests open to everyone, which is absolutely fantastic but it will be attractive to young people who would not normally be able to access such a great facility’.[26]Councillor Jones sought clarification rather than recommendation for a licensing committee that the use is for members only and not the general public was informed by the Chair, that this for the matter of licensing committee. In reliance it is reliance upon this distributed evidence of fact (maybe opinions) that Cheshire West and Chester Borough Council assert that if the planning permission was quashed and resubmitted a further decision it will make no difference to the outcome.

Legal Framework

[27]It is common ground between counsel that Section 70 (2) of the Town and Country Planning Act 1990, requires Planning Authorities in dealing with planning permission applications to have regard to ‘any other material consideration’. What amounts to material consideration is a question of law. However, also in common ground between counsel that the general principles concerning the issue of rationality and the lawfulness and fairness of such a process starts with a decision of Lord Woolf MR in R v North and East Devon Health Authority ex parte Coughlan [2001] 2 WLR 622 viz:
‘Rationality, as it has developed in modern public law, has two faces: one is the barely known decision which simply defies comprehension; the other is a decision which can be seen to have proceeded by flawed logic (though this can often be equally well allocated to the intrusion of an irrelevant factor). Paragraph 65. ‘It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken’
. Paragraph 108 ‘It has to be remembered that consultation is not litigation: the consulting authority is not required to publicise every submission it receives or (absent some statutory obligation) to disclose all its advice. Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this’. Paragraph 112.[28]The claimant’s skeleton argument relied upon Medway Council and Kent County Council & Ors, R (on the application of) v Secretary of State for Transport [2002] EWHC 2516, Stefan (Dr Marta) v The General Medical Council [1999] I WLR 1293 and the Crown on the application of R (Moseley) v Haringey London Borough Council [2014] UKSC56, and in particular the judgment of Lord Wilson from paragraph 23 onwards, which sets out the law on ‘fairness’.[29]Though not in the agreed bundles of authorities, Jonathan Darby handed up a copy of the decision of John Howells QC in Holden Studios v the Council of London Borough of Hackney [2017] EWHC 2823. It is clear that decision proceeds from the seminal decision of Lord Wilson in [R (Moseley) v Haringey London Borough Council (supra) which so far as is relevant provides as follows: ‘Although the Local Authority, any authority, has discretion whether to accept an amendment to a planning application, and a discretion of whether or not to grant planning permission for any part of what the application was for, [it is?] subject to any conditions. In my judgement what fairness may require of them in the circumstance is a question which ultimately the court itself to determine. It is not the function of the court merely to review the reasonableness of a decision-maker’s judgments of what fairness required’. (Paragraph 81) ‘It must nonetheless be borne in mind that what fairness requires in the circumstance is to be determined by reference to the circumstances as they appear to the authority at the relevant time ... and that is not sufficient to establish the decision is unlawful, really just shown it has to be better to be fairer there to be a re-consultation’. (Paragraph 6) ‘Both claimants have provided evidence on the matters on which they would have made representations. Moreover, a person may be substantially prejudiced by failure to give appropriate notice, which might have attracted other potential objectors to his or her cause’. (Paragraph 117) ‘For the reasons given in my judgment, what could have been said, given the opportunity, might have made a difference to that decision, if only on that basis it has been substantially prejudiced’. (Paragraph 119) ‘But caution is reinforced by the fact that matters of planning judgment are essentially ones for democratically elected Planning Authority. It is not that this court, generally speaking, to anticipate what the outcome would have been if the Planning Authority had had regard to the representations that they had not considered’. (Paragraph 123) ‘In this case, I am not satisfied that there was nothing that Mr Brender and others who might have supported him could have said that could have made any effect on the decision of the planning subcommittee, had he been given the opportunity. (Paragraph 124)[30]When considering the officer’s report, and this again is common ground between counsel, it is to be borne in mind the dictum of Lady Hale in Morge v Hampshire Borough Council [2011] UKSA 36 viz: ‘Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limit the law allows them’. ‘The courts should not impose too high a standard upon such reports, for otherwise the whole purpose will be defeated. The council would either not read them or [they have a?] clear enough grasp on the issues they have to make themselves. Some may think this an unusual and even unsatisfactory situation, but it comes about because in this country planning decisions are taken by democratically elected councillors, responsible to and sensitive to the concerns of their local communities’.[31]Both counsel’s skeleton arguments relied on the decision in R v Mendip District Council [2008] PNCR 500.[32]On the question of conditions attached to a planning application, though not in the bundle of the agreed authorities, parties provided to me a copy of Newbury District Council v Secretary of State for the Environment [1981] AC578, the well-known dictum of Lord Scarman at page 615 viz:
‘The three tests are (1) the condition must fairly and reasonably relate to the provision of the development plan, the planning consideration; (2) must be fairly and reasonably relate to the permission permitted development; (3) must be such as reasonable planning authority, duly appreciating statutory duties, could have properly imposed’
. It was therefore reasonably clear as to the correct legal approach I should take in answering the disputed grounds in this case.

Discussion on Grounds 1, 3(A) and 4

(A) and 4

[33]I propose to deal with Ground 1 in some more detail, leaving Ground 3(A) and 4 to be dealt with more shortly. Ground 1 was plainly the main argument made by Jonathan Darby in his oral submissions before this court. Ground 3(A) is a standalone and short point. Ground 4, as he indicated, rightly in my judgement, is oral submissions in effect followed from Ground 1 and did not add more to the relief sought.

(i) Ground 1

[34]Any fair reading of a combination of one or more salient planning documents published by Chester West and Cheshire Borough Council prior to the day of the planning hearing make it palpably clear that it was their intention as owners of the site and applicants under planning application after 18 month period of consultation that the Watersports Hub was to be for use of a private club mainly the boathouse and that had existed for many years before, well-known for its members only. Under the background facts above, I have set out above material representations made by that authority in the design and access statement 10 November 2016, the drawings prepared by Ellis Williams, the planning statement dated November 2016, and indeed the officer’s report prepared for the committee meeting on 4 April 2017, the case of Conor Perrett. If there had been any doubt as to this, it seems perfectly clear that there would not have been a need for Nial Casselden to have produced the additional paper on 4 April 2017, which made plain in the late information, and which corrected the clear representation in the report and fundamentally changed accessibility from members to those of the general public. His witness statement entirely supports this change. Somewhat curiously, he seems to consider that this matter was ‘clarification’ in the sense that the use of building remained the same as D2 and all he was doing was making it clear that the public will have access to the facilities. It is difficult to imagine how a change of use of facility from members only to those of the public can possibly be described as a ‘clarification’. In the ordinary use of the English language this is best described as a volte-face (of course allowing the introduction of French into the English language).[35]Moreover, when reading each and all of those documents generally, it is clear not only that the Planning Department were concerned about the effect of this development generally on the neighbourhood but specifically with regard to 19 Lower Road being Clive Sykes’ house, as he was the next door neighbour, but so were the Environmental Protection Team and the Highways Department who all made it perfectly clear in their reports, particularly the Highway Protection Team, that the concern was based both on noise and excessive use of this facility should members of the general public be permitted to use the site. Whether considering(1) who should be heard and(2) who would be prejudice should there be a fundamental change from members club to a facility open to all the public, it must be perfectly plain, objectively speaking, that Clive Sykes and his family were prime candidates, not to mention the other neighbours and 17 objectors who specifically raised this issue as is apparent from the documents I have set out above.[36]To meet the well-established test for procedural fairness fundamental to any judicial review case the line of cases common on both counsels skeleton starting with Lord Woolf and the R v North East Devon Health Authority ex parte Coughlansupra, via the principles enunciated in the R (Moseley) v Haringey London Borough Council, per Lord Wilson and more recently John Howell QC sitting as a Deputy High Court Judge in Holborn v Council London Borough Haringey supra, all point to a clear and consistent line of legal authority which this court is bound to follow.[37]Among the main responses to this procedure on fairness relied upon by Constanze Bell of counsel is a constant refrain that it would have made no difference to the unanimous decision of the planning permission granted. This is always a difficult matter to consider and in effect requires a counter-factual review of what would have happened but for the inability of a fair procedure permitting Clive Sykes and other neighbours to fully and fairly respond to two additional late documents. The test rightly set out by John Howell QC in Holborn (supra) and quoted above deals with this as a relatively low threshold. The approach taken in their witness evidence by both the Planning and Highway Officers who attended the meeting and therefore know what, in fact, the committee members discussed having been informed of the additional information is purport to second guess how they would have reacted. Plainly these are assumptions or inferences, not matters this court is likely to accept and, speaking for myself, I reject them. I have to say I found this unhelpful and indeed counterintuitive. The whole concept of natural justice and the ability to have a full and fair hearing is predicated on the decision-makers having heard further representations and then deciding accordingly. It should not be based on those who attended guessing what the outcome would have been, as if they can divine that. (ii) Ground 3(A)[38]Whilst I appreciate in this matter I have a discretion, and I am entitled and required to exercise that, I am unconvinced of the arguments made by Constanze Bell that Clive Sykes made all the necessary representations as to the private or public facility at the relevant time (and I have set them out above) and he has failed to provide any further witness evidence as to what if anything he could or would wish to say. From my reading of the documentation this question does not appear to have featured in any way in the officer’s report, indeed one would not expect to in view of the fact the relevant officer believed to be a private facility to have raised this matter in his report. That Clive Sykes is concerned about this matter is obvious from the evidence which I have set out about and do not repeat again.[39]The report of the Environmental Protection Team has to be read as a whole. As set out above, having recourse to full report which I have read carefully, it is apparent that the conditions attached as appropriate opening hours were clear, and the fact that further tests were necessary simply does not indicate that the noise from this new facility had not been fully assessed, but indeed was a consideration that had to be placed in the planning permission stage.[40]In fact the planning permission did limit the hours, which was a noise condition and moreover, imposed a further firm condition of a noise management plan, which would be considered and approved in due course. Whilst I appreciate that pre-reporting tests could have been of use into a planning decision, the fact that subsequently a condition is imposed which will have the similar effect of controlling noise from the very source which could affect Clive Sykes’ property makes it plain that the concerns expressed by Clive Sykes in this regard are and will be catered for in the future.[41]The suggestion that this matter was not properly reported to by the officer’s report is a matter which as with many of these planning applications and committees being experienced members could have been dealt with at the hearing without a full need for further adumbration. Reliance was rightly placed by Constanze Bell, the decision Gilbert J in Hill v Cornwall Council [2016] EWHC 1264, which is entirely appropriate in the context of noise complaints.

(A) (iii) Ground 4

[42]I consider this additional ground to simply follow on from Ground 1 and counsel accepts this approach. The application of the test in E v Secretary of State the Home Department [2004] EWCA Civ 49 per Carnwath J, as he then was, at paragraph 63, setting up the five material ingredients for such a case was briefly applied to the facts of this case by Jonathan Darby. Whilst technically one can mount an argument of this type, in reality and on the facts set out above and in this case as to the real fundamental complaint of Clive Sykes, these matters of proper consultation is forced into a different category altogether.[43]There can be no dispute the committee themselves were properly informed that this a public facility in spite some doubt has a full and proper airing amongst a group of committee members and those members of the public who did attend the meeting dealing with this item 8 on the agenda, I am satisfied on the evidence put before the court that the probability is they made no mistake. Attention was drawn, as far as I can understand, to two additional matters set out in paper 1 and 2 and this may declare this for the public facility in the meeting preceded on that basis was not the committee members misunderstood what was before them, but in fact failed to have the opportunity to appreciate fairly the importance and meaning in effect of this distinction.[44]What appears to have happened is that there was some confusion as to the planning and licensing distinction, that the latter would control future use of the public facility. This is not how I have understood the case mistake to proceed in the circumstance which Ground 1 has proved successful and correctly captures the mischief that must have taken place. In this case, I give Ground 4 no further consideration, and it can be rejected.

Order

[45]On the basis of the permission to proceed with the judicial review granted by Her Honour Judge Belcher on 14 June 2017, in respect of grounds 1, 3(A) and 4, I make the following orders: 1) The planning permission granted on 7 April 2017, in application 16/0518/FULL is quashed. 2) The matter be remitted to the Chester West and Cheshire Borough Council for a further determination based on Ground 1 alone. 3) Grounds 3(A) and 4 are refused. End of Judgment Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com