Neutral Citation Number:  EWHC 1455 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
London WC2A 2LL
Tuesday, 22nd April 2008
B e f o r e:
MR JUSTICE STADLEN
THE QUEEN ON THE APPLICATION OF PATEL
LONDON BOROUGH OF TOWER HAMLETS
SWAN HOUSING ASSOCIATION
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Mr D Kolinsky (instructed by Richard Buxton) appeared on behalf of theClaimant
Mr M Lewis (instructed by LB Tower Hamlets) appeared on behalf of theDefendant
Mr Newbury (instructed by Devonshires) appeared on behalf of theInterested Party
J U D G M E N T
(As Approved by the Court)
1. MR JUSTICE STADLEN: This is an application for permission to apply for judicial review of a decision to grant planning permission to build 133 residential units and buildings up to 25 storeys at two sites on Gaselee Street, 78 Blackwall Way, E14 9QG. The matter came before Sir Michael Harrison who, on 6th February, on the papers, refused permission, observing:
"(1) It was for the first defendant to consider the extent, if at all, to which the proposed development should meet the safety/security points raised by the third parties and condition 30 represented what they thought to be appropriate even though it did not include a change to the design of the buildings themselves.
(2) The officer's report considered the issue of residential amenity adequately in the circumstances.
(3) [Then an order for costs]."
2. There are two grounds. In relation to the first ground, reliance is placed upon a statement by the Metropolitan Police, paragraph 6.47 and 6.49 that:
"6.47 The recessed stairwells on the western boundary, and the lack of active frontages, may assist crime problems in this area . . .
6.49 The building design may block any potential views in or out of the development."
In a letter before claim, the claimant said in respect of this, on the second page of the letter dated 18th October through his solicitors:
"Third, local residents have objected to the increased likelihood of incidents of anti‑social behaviour given the design of the site. The Council noted this point as material to the determination of the application at paragraph 7.3 and recorded in abbreviated form the reservations of the Metropolitan Police at paragraphs 6.47‑6.49, but subsequently neglected to consider it when deciding to grant planning permission. This is despite advice from the Metropolitan Police in an email to the planning officer dated 12th April 2007 [whose terms I do not need to record] . . . As the Council presumably would regard the prevention of crime and anti‑social behaviour to be a foremost priority, it is particularly surprising that these concerns apparently received no consideration at all by the planning officers or the committee."
The response to that from the defendant local authority on 1st November was on page 2, paragraph 2.8:
"The issue of anti‑social behaviour was identified as a material consideration at paragraph 7.3 of the report to committee. The officer considered that anti‑social behaviour should be addressed through design measures, and therefore the report recommended the inclusion of condition listed at paragraph 3.2 of the report requiring the details of all external landscaping including inter alia 'security measures'. An informative was also recommended requiring liaison with Metropolitan Police. The decision notice dated 20th September 2007 includes condition 30 which addresses safety measures as follows ‑‑
'Prior to commencement of development a Secured by Design Statement must be submitted to and approved by the local planning authority. The recommendations of this report must be implemented to the satisfaction of the local planning authority.'
3. At the heart of the claimant's complaint as to the approach of Sir Michael Harrison in refusing permission, Mr Kolinsky in his written submissions in paragraph 12 said this:
"In refusing permission on the papers, Sir Michael Harrison observed it was for the first defendant to consider the extent if at all to which the proposed development should meet the safety/security points raised by the third parties and condition 30 represented what they thought to be appropriate, even though it did not involve the redesign of the buildings themselves. With respect to the learned judge, this observation sets out a thought process that might have been open to the Council, but not the thought process by which the decision was in fact taken. As set out in paragraph 4 above, the Council's decision‑making process proceeded on the incorrect basis that the condition did address the concerns addressed in respect of safety/security, not that it addressed some or part of them or that the concerns were not worth addressing. The claim was on an erroneous basis and thus the Council made its decision on an erroneous basis."
4. What is said in answer to that is that Mr Kolinsky has over elaborated the import of paragraph 2.8 of the letter of 1st November and interpreted it in a way that is not warranted, as indicating that it was an admission by the Council that the committee, when reaching their decision, accepted the factual basis of the Metropolitan Police comments in 6.47 and 6.49, and accepted that the recessed stairwells and the lack of active frontages in the development which planning permission was being applied for, might assist crime problems in the area and that the buildings might block the potential views in or out of the development, and that by implication they were accepting that there was a lack of active frontages and accepting that there was a lack of sight views.
5. In my view, there is force in that answer to Mr Kolinsky's submission. It seems to me that a natural reading of paragraph 2.8 of the 1st November letter is that what was being said in the letter was that the local authority official who was reporting to the committee considered that anti‑social behaviour should be addressed through design measures, which was why he made the recommendation of including condition 3.2 and condition 30. In other words, a much more broad brush approach adopted by the officer of the Council than was contended for by Mr Kolinsky. That that was the case was confirmed to me by counsel on behalf of the defendant local authority in the course of argument on instructions.
6. With some force, Mr Kolinsky replied that this was the first he had heard that that was the position of the local authority and that, for that reason, this matter should go forward to a full judicial review at which there could be disclosure and witness statements to be put in and possibly cross‑examination. In my judgment, that is putting the burden of proof the wrong way round. It is for the claimant to make good an arguable case that there has been an illegality justifying permission for judicial review. It does not seem to me, on a sensible and fair reading of paragraph 2.8 of the letter of 1st November, that there was there an acceptance of the detailed kind contended for by Mr Kolinsky. It does not therefore seem to me that the criticism that the claimant makes of the reasoning of Sir Michael Harrison in refusing permission is arguably correct on the evidence. It does not seem to me that there is an argument. There is insufficient evidence to justify the enormous cost, expense and delay that would be involved in a full judicial review hearing simply based on paragraph 2.8. Although there were further arguments advanced on both sides, in view of the shortage of time it seems to me that that is sufficient for present purposes by way of explaining why, in my judgment, ground one does not justify permission for a full judicial review.
7. So far as ground 2 is concerned, the complaint, in essence, is that the Council took an erroneous approach to residential amenity in that it was not properly dealt with by the Council. In particular, it did not come close fairly to acknowledging the extent of the adverse impact on the claimant of the proposed development. The relevant paragraph of the officer's report, particularly at 8.54, is in these terms:
"Sense of Enclosure/Outlook
Unlike sunlight and daylight assessments, this impact cannot be readily assessed in terms of a percentage or measurable loss of quality of light. Rather, it is about how an individual feels about a space. It is consequently far more difficult to quantify and far more subjective. Nevertheless, in the opinion of officers, this proposal does not create an unacceptable increase in the sense of enclosure or loss of outlook to habitable rooms, particularly because of its high density cluster location. In those circumstances, a reason for refusal based on these grounds is not sustainable."
In essence, Mr Kolinsky's complaint on behalf of his client is that that did not adequately ‑‑ although it reached a conclusion that the loss of amenity would not be unacceptable ‑‑ identify the nature and extent of the loss of amenity or the prejudice to Mr Patel.
8. Counsel for the local authority relied on authorities to suggest that committee members can be taken to have in effect judicial knowledge or local knowledge of certain areas. I do not take that into account in reaching my judgment. Mr Patel had an opportunity to avail himself of an opportunity to address the local planning committee and, although I am told he did not have the opportunity of audio or visual aids, he had nonetheless the opportunity to make such points as he wished in order to elaborate on precisely the point that is now said not to have been sufficiently particularised or taken into account by the local authority. It is in fact the case (and I have been shown) that there were pictures of the proposed development and existing development which showed the cluster development and showed that there would obviously be blockage for people in the lower story of the building where Mr Patel lived if planning permission were to be granted and that that was in the planning application which was seen by the officers and which would have been available to members of the committee. Leaving even that aside, it seems to me that the combination of the way in which it is put in paragraph 8.54, the fact that it is described as 133 units on 25 storeys, and the fact that Mr Patel was there and able to make these submissions derives this point of substance. For those reasons I do not think that it gives rise to an arguable error in law.
9. In saying that, I am conscious of the fact that by force of time constraints I have not been able adequately to do justice to the long and detailed submissions which I have heard on both sides, and I would not wish it to be thought that I have not carefully considered the persuasively and eloquently advanced arguments of Mr Kolinsky. I have. I have taken them into account and I have given anxious and careful consideration to this. But, in my judgment, for the reasons I have given, permission should be refused.
10. MR KOLINSKY: My Lord, I understand there are no further applications for costs coming my way. The normal rule in Mount Cook is that the costs of the acknowledgment of service are recoverable, but it is limited to one party. My learned friend Mr Newbury is not pressing any application. My learned friend Mr Lewis does not seek to. My Lord, you will see my skeleton, I have done this ‑‑
11. MR JUSTICE STADLEN: What order are you asking me to make?
12. MR KOLINSKY: I would ask you to knock out the order for costs of Sir Michael Harrison and substitute no order for costs. Failing that, my fall back position ‑‑
13. MR JUSTICE STADLEN: I do not have jurisdiction to change an order that is already made.
14. MR KOLINSKY: Yes, my Lord, because this is a renewal hearing of permission. Obviously if my Lord was to, for example, grant permission that order would plainly fall away. This is a renewal hearing of a permission application. My Lord does have jurisdiction.
15. MR JUSTICE STADLEN: The order has already been made. Do I have jurisdiction to vary that? I do.
16. MR LEWIN: It is a renewed application. I do not dissent from that. I would point out that Sir Michael Harrison did exercise his discretion in considering the issue of costs. Just because, as it is said, we have succeeded today on a slightly different point, I do not see why that would require amending or doing anything to the award of costs made by Sir Michael. I would in any event submit that what Sir Michael did was see through the challenge here and, in effect, take my point which is that it is an over‑interpretation of the expression used in the response to the letter before claim that addressing police's concerns through conditions was simply a matter of saying "We hear what you, the police, say. We propose, in order to address that, to impose conditions". I dare say one comes round full circle. The claimants have lost at the paper permission stage and now once again they have lost in their renewed oral.
17. MR JUSTICE STADLEN: I am bound to say, I had a certain amount of sympathy for Mr Kolinsky's point that the rabbit that was produced out of a hat in the form of what you told me on instructions was not in the papers before Sir Michael.
18. MR LEWIN: My Lord, I am going to have to take your Lordship to the history of how this developed.
19. MR JUSTICE STADLEN: I do not want to spend more time on this.
20. MR LEWIN: The short point is that there is no reason, the claimants having lost at both stages, for doing anything with the award of costs first time around. Sir Michael Harrison, who is a judge with great experience in planning matters, had all the papers before him, including the material submitted by the claimants, and did not see an arguable point in what they said. Given that this is only the renewed application after the paper consideration stage here, my Lord, there is no requirement on the Council to put the evidence in. What the Council did put in with their acknowledgment of service was their statement that ‑‑ well, I listed them and I took your Lordship through them.
21. MR JUSTICE STADLEN: What is the order you ask me to make?
22. MR KOLINSKY: My primary submission is no order as to costs. My fall back submission would be reducing the costs to £1,500 as set out in the skeleton ‑‑
23. MR JUSTICE STADLEN: I will vary the order by reducing the order for costs to £1,500.
24. MR KOLINSKY: I cannot ask you for permission to appeal but any renewal would have to be to the Court of Appeal. It would greatly assist us if we had a transcript. Could I ask my Lord to consider an order to expedite a transcript.
25. MR JUSTICE STADLEN: Of this hearing?
26. MR KOLINSKY: Yes.
27. MR JUSTICE STADLEN: Yes, certainly. I should add by way of postscript to my reasons that I was handed up very late by Mr Newbury, on behalf of the interested party, a letter of 11th March 2008 from the Metropolitan Police to the interested party in these terms:
"Following the office meeting with Sarah Blake in January 2008 to review the newer plans for the above application, and the subsequent Secured by Design Statement, I am happy to inform you that, to date, the proposals appear to be proceeding satisfactorily. Continued adherence to my recommendations should ensure a successful Secured by Design certification.
If you have any difficulties or questions, please feel free to contact me at the earliest opportunity on the number shown above.
I am happy, at this stage, that my concerns have been fully discussed and have been, or will be, acted upon, and brought to SBD standards."