R (oao Manning) v South Lakeland District Council

Transcript date:

Tuesday, February 8, 2005

Matter:

Court:

High Court

Judgement type:

Substantive

Judge(s):

Elias J

Transcript file:

C0/3820/2004 
Neutral Citation Number: [2005] EWHC 242 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2

Tuesday, 8th February 2005

B E F O R E: 
MR JUSTICE ELIAS

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THE QUEEN ON THE APPLICATION OF STEPHEN JOHN MANNING 
(CLAIMANT)

-v -

SOUTH LAKELAND DISTRICT COUNCIL
(DEFENDANT) 
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Computer -Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - -

MR D EDWARDS (instructed by Richard Buxton, Environmental & Public Law, Cambridge CB1 1JX) appeared on behalf of the CLAIMANT

MR A EVANS (instructed by the Legal Department, South Lakeland District Council) appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As approved by the Court) 
- - - - - - -

Crown copyright©

1. MR JUSTICE ELIAS: The claimant in this case is a resident of Flookborough in Cumbria. The defendant is the local planning authority for the South Lakeland District. The District includes the Cark Airfield. The interested party operates a parachute centre from Cark Airfield.

2. Both the Claimant and the Defendant are represented before me, but not the Interested Party. The decision under challenge is one which the defendant made on 7th May 2004 when it granted the parachute centre (the interested party) a certificate of proposed lawful use in respect of the operation of its parachute centre at the Cark Airfield. The certificate has sought more extensive use of the airfield.

3. By this application for judicial review the claimant seeks to quash the certificate.
Certificates of Lawful Use

4. Sections 191 and 192 of the Town and Country Planning Act 1990 provide mechanisms, by which it may be determined, whether or not existing uses or operational development and proposed uses or operational development are lawful. Section 191 is concerned with existing uses and section 192 with proposed uses.

5. A use or operational development is lawful for the purposes of planning control if:

a) no enforcement action may be taken in respect of that use or operational development either because it does not involve development requiring planning permission or because the time period for the taking of enforcement action has passed; and b) the use or operational development does not contravene the requirements of any enforcement notice then in force (see section 191(2) of the Town and Country Planning Act).

6. Section 55 of the Act defines development as follows:

"... except where the context otherwise requires, 'development,' means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land."

7. In this case the application involves the more intensive use of the land. The germane principles of law have been agreed in this case. The following propositions are not in dispute:

1. Intensification of use may give rise to a material change of use of land and therefore constitute a "development".

2. For there to be a material change of use of land there must be a change in the character or nature of the use of land.

3. A change in the character of the use of land may arise through intensification where there is a material increase in the impact of the use. This may include off -site impact (see eg Guildford RDC v Fortescue [1959] 2 QB 112, Thames Heliports PLC v Tower Hamlets LBC [1997] 74 P&CR 159 and Blum v the Secretary of State for the Environment (1987) JPL 278.)

4. Whether there is change in the character of the use of land is a matter of judgment for the authority. 
5. The intensification must amount to a change in character of the use and not just an increase in the amount of that use.

8. Perhaps the key point here is that the impact of a particular use is an integral part of the character of that use, so that even though the relevant use itself may not change, save in the intensification itself, that will, in an appropriate case, be capable of constituting a change in character.

The background facts

9. On July 1st and August 5th 1997 the defendant granted certificates of lawful existing use ("CLEUD") in respect of the operation of Cark Airfield as a parachute centre. This was, therefore, a certificate issued pursuant to section 191.

10. The use certified as lawful, as set out in the first schedule to those certificates, was contained in paragraphs 11 to 13 as follows:

"11. The parachute flights are restricted between 9.00 am and 9 pm (21 hrs);

12. The parachuting operations are restricted to the parachuting from a single plane.

13. The parachuting operations are restricted to the following days only:

(a) every Saturday and Sunday in the year; 
(b) an additional fourteen days throughout the year not being weekends"

11. During 2001 and 2002 a number of applications for planning permission were made by the parachute centre for an extension of the operation of the parachute centre to "every Friday between April and October and an additional 30 days". That is precisely the same additional period as is identified in the certificate under challenge.

12. Those various applications were the subject of reports by officers. They appear to have consistently recommended refusal of the planning permission. In relation to one application the members were minded to agree the application provided effective safeguards could be negotiated to protect the interests of the public who might be adversely affected by the increase in flying time, but those negotiations failed. The most recent application was refused in April 2003, following a detailed objection from the Environmental Protection Manager. The basis of the refusal was essentially that the:

"additional use with its associated noise impact would be detrimental to the residential amenity of the adjoining areas and detrimental to the peaceful enjoyment of the adjoining countryside..."

13. On 4th July 2003, the interested party changed tack: instead of seeking planning permission, which, of course, is premised on the notion that there is a change of use, it applied to the Defendant for a certificate of lawful proposed development ("CLOPUD") pursuant to section 192. The description of the proposed use, in respect of which the certificate was sought, was stated to be as follows:

"Increasing the parachuting activity from its present level (every weekend in the year plus 14 week days - 118 days) by a further 56 days, made up of every Friday between 1 April and 30 September plus a further 30 week days."

14. The application was submitted together with a written advice of counsel, Mr John Barrett. In that advice Mr Barrett referred to a passage from Volume 2 of the Planning Encyclopedia, which stated that whether intensification amounts to a change in use is a question of degree. He then advised as follows:

"Whilst the nature of the proposal involves an increase in use and therefore an intensification of the activities it does not represent, in my view, any difference in the character of the use that is permitted in respect of this site. The nature of the uses does not change nor do any part of the other uses that are taking place on the defined land become displaced as a consequence of these activities."

15. In a memorandum to the Planning Services Manager, Mr Ridgway, dated 6th August 2003, the Council Solicitor noted that the application gave rise to a "finely balanced argument". She advised that counsel's advice be sought. The defendant accordingly took advice from counsel, Mr Martin Carter. Mr Carter commented that the "central focus" must be that:

"the intensification must amount to a change in the character of the use; not just an increase in the amount of the use." (paragraph 10)

He then continues in paragraph 11 as follows:

"If the use described in the CLEUD is compared simply with a proposal to increase the days when flights occur, with no other matter changing, then I agree with Mr Barrett that is not possible to point to any change in the character of the use of the land. It seems to me that such a proposed use would merely be a more frequent carrying out of the existing use. I agree with the ultimate conclusion of Mr Barrett that the use of the site on an increased number of days, without more, would not amount to a material change of use through intensification. However, Mr Barrett did not address any other change in the nature of the operation, such as hours of use or the number of aircraft, and I have concerns about the way that the application is drafted."

In respect of this latter point, Mr Carter advised in paragraph 14 as follows:

"I have concerns about the generality of the application before the Council. As presently described, the use in the CLOPUD would not be limited to any particular hours of the day. It would, therefore, permit early morning drops which, I understand, cause particular disturbance.

Further, the use described in the CLOPUD would allow the use of more than one aircraft. It seems to me that it could be argued that flights at times very different from those presently adopted, with more than one aircraft could easily be described as having a different character such that a material change of use would occur. I think that the Council needs to guard against that risk."

16. I pause here to note that there is potentially an ambiguity in paragraph 11. It is not clear whether Mr Carter is saying that the increased impact on the public affected is not capable, as a matter of law, of giving rise to a change of use, or whether he is indicating that it is not possible on the facts, given the particular increase in use in this case.

17. As a consequence of this advice the parachute centre did modify its application to make plain that it was only intending to operate on the same hours and with one plane.

18. On 8th October 2003, the Planning Services Manager, Mr Ridgway, sent an internal memorandum to the solicitor raising several questions arising out of Mr Carter's advice. This is a document of some significance and I need set out a section of it:

"The existing lawful development permits 118 days flying out of a total of 365 which is 32%.

The increase to 174 days (+56) will take the proportion up to 47% of the year.

However, if the prime flying time is considered to be between 1 April and 30 September this reduces the main impact to a period of 183 days during which time the Parachute Centre could fly 66 days (26 x 2 + 14) 66/183 = 36% this proportion is little different from the whole year figure. With the new proposed flying days would increase to (26 x 2 + 56)= 108/183 = 59 % and this is a significant change from the projected whole year figure if the extended use is allowed.

The impact is concentrated on the period during which most residents will gain some benefit from their gardens and means that on virtually 60 % of those occasions they will have to contend with air borne noise and distraction from the Parachute Centre.

This fact coupled with the recommendation from the Council's Environmental Protection Manager which has made it clear that he considers the noise generated by the Parachute Centre operations to be sufficiently unneighbourly to warrant refusal demonstrates clearly to me that a material intensification in use has occurred. A modest, low level informal activity producing very low impacts on the community in 1996 has evolved into a semi - professional business operation which is already generating very widespread concern from residents from Arnside, through to Cartmel peninsular and across to Furness.
...

If we were dealing with a circumstance where an increase in days of a low key use regulated itself to avoid widespread complaint then I would be prepared to consider that Martin's conclusions might be correct.

Where however such a use becomes more intensive in the activity that takes place and thereby causes real detriment to amenity over a wide area, then the character of that use has changed and not just its intensity. In such circumstances, I think it is reasonable to reach the conclusion that a material change of use has taken place.

To conclude otherwise is to accept that evidence of impact is immaterial."

19. This memorandum, therefore, made unambiguously clear Mr Ridgway's own view that the impact on the public was such that it gave rise to a change in the character of the use.

20. Mr Carter was then asked to advise again in response to that memorandum. His second advice is dated 7th November 2003. He questioned the approach of the Planning Services Manager of considering the impact of the intensified use on the premise that it would be concentrated in the period from 1st April to 30th September. He went on in paragraph 11 as follows:

"Secondly, and even if it were a case of comparing the potential use over the summer period, I am still not persuaded that a material change of use by intensification could be shown. An increase in impact is not immaterial, as I fear Mr Ridgway thinks I believe, but it is not to be taken as establishing that a material change of use through intensification has occurred. If it was, material change of use through intensification would be much easier for local planning authorities to identify and justify on appeal than they clearly are. Again, the Blum case makes it clear that the doctrine has to be used with caution, otherwise the planning system could punish someone for making a success of their business, when the same activity is being carried on. As set out in my first Advice, it is necessary to identify some change in the fundamental nature of the use itself or some definable impact upon the character of the land. I do not think that the increased activity, increased complaints and the change of the business approach of the site operators, which are the factors identified, are such as to mean that the requirements for identifying a material change of use by intensification are met.

12.I still think that the Council would have less than a 50 % prospect of success if it were to resist the application on the basis that a material change of use has occurred..."

21. Paragraph 11, taken on its own, might suggest that the factors of increased activity, increased complaints and impact on the character of the land could not, as a matter of law, lead to a conclusion that these were consummate to a material change of use. However, I accept the submission of Mr Evans', counsel for the defendant, that that would not be a justified reading of the opinion. First, Mr Carter makes it clear, contrary to the understanding of Mr Ridgway, that an increased impact is material in the sense that it is relevant. He did not think it was, however, sufficiently material in the sense of it being significant for it to change the character of the use. Second, if Mr Carter were saying that the additional impact on the public was irrelevant as a matter of law, then the logic would be that the council would have no prospect of success in seeking to resist the application. It would be making a plain error of law in refusing a certificate, but it is clear that he was not putting the matter anything like that high.

22. Mr Carter again advised in writing on 8th February 2004. In paragraph 13 he said this:

"It seems to me that the matter comes down, as I said in my first Advice, to whether the increase in days of flying brings about a change in the character of the use of the land. In my view, it does not. I accept others could disagree, but I think that the prospects of an Inspector concluding that a material change of use would occur are less than 50 %. I still think that the CLOPUD should be granted."

23. I accept, as Mr Evans submits, that Mr Carter is thereby making it plain that he is expressing his own judgment as to whether a material change of use may be established, whilst recognising that others might take a different view.

24. The decision to grant the certificate was made on delegated authority by the Director of Strategy and Planning Miss Barton and the Council Solicitor. A witness statement has been produced in these proceedings from the Director of Strategy and Planning at the material time, Miss Barton. She had identified the relevant documents to which she had regard in reaching her decision. They included the three advices of Mr Carter, a file note from the solicitor, dated (13th) 30th April 2004, and a file note prepared by the case officer, Miss Hopkins, together with comments from the Planning Services Manager, Mr Ridgway. In addition, she said she discussed matters with Mr Ridgway. The approach she adopted she described as follows in paragraph 3 of the witness statement:

"In considering the decision leading to the grant of the Certificate of Lawfulness of Proposed Use or Development issued on 7 May I considered carefully the evidence put before me, including the various opinions received from Counsel, the file note prepared by the Case Office with comments from the Planning Services Manager and the file note of the Solicitor to the Council ... I understand that the other documents referred to are already in the bundle provided by the Claimant. I understood from the Solicitor's file note that a comparison was to be made between the situation recorded in the CLEUD of 5 August 1997 and the proposed activity referred to in the application and that whether or not the difference between those two scenarios amounted to a material change of use was a matter of judgment to be approached by reference to the legal framework set out in the relevant propositions of the Town and Country Planning Act 1990 and the decided cases on material change of use by intensification of an existing use."

25. It is necessary for me to set out and consider the two file notes in a little more detail: first, that of the solicitor to the council. She summarised, often verbatim, certain aspects of Mr Carter's opinions. She summarised the conclusions as follows:

"As the comparison to be made is between the situation recorded in the CLEUD of 5th August 1997 and the proposed activity referred to in the application, there is no fact -finding exercise to be undertaken. The decision to be made is whether the difference between those two factual scenarios does or does not amount to a material change of use. That is a matter of judgment to be approached by reference to the legal framework set out in the relevant provisions of the Town and Country Planning Act 1990 and the decided cases on material changes of use by intensification of an existing use."

Later she said this:

"Since, however, the issues to be determined are matters of evidence and law, and advice has been received on these issues ... [it may be] appropriate to deal with the application under delegated powers."

26. The file note from the case officer, Miss Hopkins, made plain that she and Mr Ridgway were both very concerned about the advice from Mr Carter. There were a substantial number of people complaining about the significant detrimental impact that would result from the additional flying. She expressed the view that it was strange to her at least that the use of a second plane for flying outside the usual hours could be considered material in circumstances where what she described as a dramatic increase in the number of days would not.

27. She indicated that she would have thought that a change in character could arise in these circumstances from the increased number of days' flying activity alone. She had made all these concerns plain to the city solicitor, Ms Storr. Mr Ridgway concurred with the observations of the case officer. He commented that in view of the second opinion of Mr Carter he did not wish to press his views in opposition. He said this:

"I believe that the matter has been examined by the Council carefully and that the likely outcome to grant a Certificate is turning on issues which are no longer linked clearly to the evidence of harm from the community and the Council's Environmental Health Officer."

Then a little later:

"Since the matters raised by Counsel and his conclusions are counter -intuitive I see little benefit being served by a further round of public consultation. The bulk of correspondence in opposition to the proposal will not be persuaded by the legal arguments that have been deployed. It is fair to assume that the majority objection to the Certificate will remain."

28. As I have said, the determination itself was made on 7th May. There have been a number of further documents relied upon by Mr Edwards, counsel for the claimant, which emerged after that time. First, Mr Ridgway wrote to the Councillors to explain why the matter had been delegated to the officers and why the certificate was going to be granted. He gave two reasons:

"(1) that decisions on Certificate submissions are delegated matters because they rely on an interpretation of legal information which needs to be performed by the Council's solicitor.

(2) the second centres on the fact that Counsel's opinion has been sought on this complex matter and has confirmed that the Certificate should be issued as a matter of law."

29. Similarly in a letter to Tim Collins, the local MP, he commented that "the Council had no real alternative in the circumstances" in the light of strong advice from counsel. Finally, there was a report, again from Mr Ridgway, dated 27th May 2004, which was presented after the event, to outline to members the issues which had been considered in the grant of the certificate. In much of this report he reproduced the comments made from the solicitor's file note, to which I have made reference. He also said this at paragraph 13:

"In his advice, Counsel stated that it is necessary to identify some change in the fundamental nature of the use itself or some definable impact upon the character of the land. He stated that he did not think the increased activity, increased complaints and the change in business approach of the site operators, which are the factors identified, are such as to mean that the requirements for identifying a material change of use by intensification are met."

30. These comments, to some extent, reflect also an e -mail which he wrote, well before the certificate was granted, when he said this:

"We will notify Committee of our inability to refuse the Certificate on legal grounds."

The Grounds of Complaint

31. Mr Edwards submits that the Council have misunderstood the advice given to them by Mr Carter and, as a consequence, they failed to recognise that the question whether or not there was a change in the character of the use depended on, amongst other things, the off -site impact of the increased use of the premises. He observed that both Mr Ridgway and Ms Hopkins considered that the impact, over a wide area, was very significant and it was their view as planning, but not legal, experts that the extent of the change was sufficient to affect the change in the character of the use.

32. Mr Edwards has made some criticisms of the advice given by Mr Carter, but he submits that the key question is not what Mr Carter said in his advice but rather how that was construed by the officers. He rightly points out that nowhere did Mr Carter, in terms, say that the off -site impact on members of the public would of itself be capable of constituting a material factor which could alter the character of the use. Moreover, Mr Edwards identified certain passages in the opinions which may suggest to the contrary.

33. I have already considered those above and, as I have indicated, I think that when read in context it was plainly Mr Carter's own understanding that the off -site impact could, in principle, be capable of altering the character of the use. He, however, reached the conclusion, rightly or wrongly (and I express no view either way about it) that in his opinion it did not do so in the circumstances of this case. He felt that it would be difficult for the council to resist any challenge to a refusal to grant the certificate. He reached that clear view, in the light of the observations made by Mr Ridgway in his memorandum, although in his third opinion he made it plain that, of course, different views were possible. He referred specifically to complaints from members of the public and, in my view, indicated that he recognised that the impact on the public was, in principle, capable of being a relevant factor in the exercise of the necessary judgment.

34. However, the issue still arrises whether the advice was properly understood and applied by the officers making the decision. I confess I have had some concerns about this matter. The point of substance is whether the council felt compelled, in view of the advice given, to reach a conclusion, as a matter of law, or whether it recognised that it was ultimately a matter of judgment, albeit one where counsel had expressed a clear and unambiguous view. The most powerful evidence suggesting that the officers may have felt that they were compelled, as a matter of law, to conclude that there had been no change in the character of the use, are the various comments made by Mr Ridgway, to which I have made reference.

35. His observation, for example, that the grant of the certificate turns on issues: "which are no longer clearly linked to the evidence of harm from the community" and his file note that the correspondence in opposition to the proposal "will not be persuaded by the legal argument that have been deployed" give ammunition to Mr Edwards's submissions. To these should be added the subsequent letters indicating, as he thought, that the council had no real alternative and had to reach the conclusion that it did.

36. Mr Edwards submits further that these misunderstandings must have tainted the approach of Miss Barton. He says that her witness statement is somewhat cryptic about precisely how she dealt with the question of the impact of the increased flying on the members of the public.

37. I see the force of these submissions but I have concluded that it would not be a proper reading of the evidence in the round. There are plainly sections of the reports, provided to Miss Barton, which accurately set out the relevant legal principles. Mr Ridgway does not say that his understanding is that whatever the extent of the off -site impact it can never affect the obligation to grant the certificate. I think that his views, which reflected also those of the case officer, Miss Hopkins, can fairly be described as a feeling that they were being forced to grant the certificate because of the strong views expressed by counsel in his opinions, which contradicted their own intuitive and, as they saw it, common sense conclusions. But their own views as to the impact of the complaints were put to him for his consideration and he did not change his initial stance, notwithstanding those concerns.

38. In my judgment, Mr Ridgway's language is consistent with the impression that the council was constrained by the legal opinion not to adopt a position which would be likely, according to the best advice taken, to be open to legal challenge. The constraint, in other words, was not that the outcome was determined by a fixed legal principle, that the nature and degree of the additional impact on the public was irrelevant, but rather that although it was a matter of judgment, it was one where the council had been strongly advised by its legal counsel that there was really only one conclusion it could propely reach, and the officers felt, reluctantly, that they had to advise members to follow that advice.

39. I considered whether it might be said that the council fettered its discretion and was acting under the dictation of the advice given by counsel. But that has not been a matter which has been argued before me, and, in any event, it would not, I think, be a fair and proper inference that could be drawn in view of the statement by Miss Barton herself as to the matters which she considered before reaching her own independent conclusion. No doubt that conclusion was strongly influenced by the advice given by Mr Carter, but that of itself would not be improper.

40. I should also note that it has not been suggested that the conclusion reached was, in any sense, perverse. No doubt the officers of the council could have shown greater faith in their own assessment of the merits of the case and have let the interested party appeal to an inspector if it were dissatisfied. But the officers chose in the end to accept the legal advice given and they cannot, I think, be criticised for that. Accordingly, for these various reasons, I dismiss this application.

41. MR EVANS: My Lord, I make an application for my costs.

42. MR JUSTICE ELIAS: I think each side has agreed the costs, have they not?

43. MR EVANS: They have been agreed in the sum of £6,515.

44. MR EDWARDS: There is one other matter: Mr Manning is not in court today but can I formally ask for permission to appeal?

45. MR JUSTICE ELIAS: I am sorry I am going to refuse that because it turns so much just on its own facts. You will have to persuade the Court of Appeal.

46. MR EVANS: My instructing solicitor is concerned that the figure on the summary assessment form your Lordship may have, does not reflect the up -to -date figure. So far as there is an order for costs, in my submission that should be in the figure of £6,515. There was some concern behind me.

47. MR JUSTICE ELIAS: Can I thank both counsel for the way you have argued this case and also for the very efficient way in which the material has been provided. Thank you very much indeed.