Stefanou, R (on the application of) v Westminster City Council & Anor [2017] EWHC 908 (Admin) (25 April 2017)

Neutral Citation Number: [2017] EWHC 908 (Admin) Case No: CO/4918/2016 IN THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION ADMINISTRATIVE COURT Royal Courts of Justice Strand, London, WC2A 2LL 25/04/2017 B e f o r e : MR JUSTICE GILBART ____________________ Between: THE QUEEN on the application of STELIO STEFANOU Claimant - and - WESTMINSTER CITY COUNCIL and CUNNINGHAM MANAGEMENT LIMITED Defendant Interested Party ____________________ Christopher Lockhart-Mummery QC (instructed by Pemberton Greenish LLP) for the Claimant Meyric Lewis (instructed by Isaac N P Carter, Senior Planning Solicitor, Borough Legal Services) for the Defendant John Steel QC (instructed by Quastel Midgen LLP) for the Interested Party Hearing dates: 14th and 15th March 2016 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE GILBART : ACRONYMS USED IN JUDGMENT TCPA 1990 Town and Country Planning Act 1990 LBCAA 1990 Planning (Listed Buildings and Conservation Areas) Act 1990 PCPA 2004 Planning and Compulsory Purchase Act 2004 NPPF National Planning Policy Framework WCC Westminster City Council LPA Local Planning Authority CA Conservation Area IP Interested Party 21 Charles Street, London W1 lies in the heart of Mayfair. It is a Listed Building. Mr Stefanou owns the adjacent house at No 22, which is also a Listed Building. The IP wants to carry out alterations to No 21, which include the construction of a substantial basement underground, on three levels. That will cause a great deal of upheaval, and as is often the case with basement extensions will involve lengthy building and excavation works. On 18 th August 2016 the Defendant WCC granted listed building consent and planning permission for the works. The Claimant has issued these proceedings to quash those consents. The development and listed building works thereby permitted include some significant changes to parts of the works permitted by an earlier planning permission of 2008, which was renewed in 2011 pursuant to s 73 of TCPA 1990 . The Claimant contends that WCC has wrongly treated that 2011 permission as extant, on what the Claimant contends is the erroneous basis that the IP has carried out works which amounted to a commencement of development as defined in 55 of TCPA 1990 . The Claimant also contends that, in considering the new applications, the Council failed to have regard to newly adopted Development Plan policy on basement extensions, contrary to s 70(2) TCPA 1990 and s 38(6) PCPA 2004. This application is made after a grant of permission on the papers by HH Judge Gore QC on 16 th November 2016. As became apparent during the hearing, Judge Gore was wrong to treat the three main grounds of claim as raising the same issue. It is convenient to start by identifying the two central areas of dispute with which this litigation is concerned. i) Firstly, the Development Control code appearing in Part III of TCPA 1990 requires that planning permissions contain conditions require that works within the development should be commenced within a set time period (in this case within 3 years). While the Act makes provision for the conditions of permissions to be varied such an application may only be made within the period specified. There is a substantial issue relating to the 2011 development. WCC and the IP contend that it had been implemented by 2014, but the Claimant contends that it was not. ii) Secondly, the IP now wants to build a different scheme. Most of the 2016 scheme was similar to the 2008/2011 proposal, but it included some additional works. When the planning application was submitted, it is contended by the Claimant that, whether or not the works involved were different, WCC failed to have regard to its newly adopted policy which was now very restrictive of basement development. WCC and the IP assert that it did. I shall deal with the matter as follows: i) Factual background ii) Submissions of the Parties iii) Findings of Fact, Discussion and Conclusions. The building at 21 Charles Street is a Listed Building which has been identified as being in need of some repair. The works proposed to the building required both planning permission under TCPA 1990 , and listed building consent under LBCAA 1990. In 2008, the building had been the subject of a planning application (and Listed Buildings consent application) for "External alterations to existing dwelling at 21 Charles Street and 21 Hays Mews including demolition and redevelopment of the mews building (retaining the front façade) to create sub-basement, lower basement, ground to second floors including a mansard roof in connection with the use of the building for residential purposes (Class C3) …………………." It was granted on 24 th December 2008 subject to conditions. Albeit not stated within the permission, it included a condition pursuant to s 91 TCPA 1990 that it be commenced within 3 years. During the course of 2010-1, unauthorised work was carried out to the façade. It had been repointed without the requisite approval being gained under the 2008 consent. On 11 th May 2011 the WCC Planning Enforcement Team wrote to the owner requiring that the brickwork be repointed, failing which formal enforcement action, including the issue of a listed building enforcement notice, would be taken. Some works were carried out (the extent, nature and timing appear below). It is not suggested that the 2008 permission was ever implemented. In 2011, an application was made under s 73 TCPA 1990 to carry out the development without complying with the original implied condition as to the commencement of the development. On 22 nd September 2011 permission was granted subject to conditions. They included the following: i) Condition 2 read "You must apply to us for approval of full particulars of the following parts of the development: All works to front façade brickwork. You must not start any work on these parts of the development until we have approved what you have sent us." ii) Condition 3 applied a similar approach to approval of facing materials, and prevented work on those parts of the development until approval had been gained. iii) That permission also omitted the condition required by s 91 TCPA 1990 , but it was again implied. It is necessary to identify what was proposed on the front façade. The Plans (i.e. as approved in 2008 and 2011) show that the existing rainwater and soil vent pipes in the centre of the front façade were to be removed. Those pipes ran down the centre of the front façade, running to the left side of the front door (as viewed from inside), and between the second and third of the sets of four windows running across the façade at first and second floor level. The "Design and Access Statement" of 2008, put in before me by the IP and relied on by it and by WCC (which formed part of the application, and is referred to on the face of the permission) shows the provision of new cast iron pipes close to the edges of the façade. The Plan in that statement shows that at the top of the pipes to be removed, there would be the repair of brickwork above the cornice of the building. The statement at paragraph 2.0 refers to some reinstatement being required around the hopper head, and new work to form the new position for the rainwater hopper head outlet. The soil vent pipe was to be rerouted internally. That statement also gives descriptions of the work involved on the front façade at first floor level. The removal of the pipework would involve the making good of existing holes in the balcony, the making good of the holes for the central pipes in the cornice, and the cutting of holes in the cornice for the new pipes. A description of the materials to be used is given, stating that where the fabric is to be repaired or replaced, materials will be reused if possible. So far as brickwork is concerned, it would be carried out in reclaimed matching London stock brick if possible, and lime mortar. There is nothing in the approved plans or application that describes any large scale replacement of brickwork to the frontage. The effect of Conditions 2 and 3 was to require submission of further detailed proposals. Such conditions are commonplace on schemes relating to a Listed Building. The Plans approved (see in particular Plan D01) are consistent with the above description. I shall in due course set out my conclusions on the meaning and effect of the permission. I was taken by Mr John Steel QC for the IP through the work which was said to have been carried out to the front of the building: i) The central downpipes were removed, and replaced by a new single pipe, also placed centrally; ii) Repairs were carried out to the brickwork where the pipe had been removed, and some patching carried out beneath windows, and in the basement; iii) It is stated in evidence by Mr Nazir Ali put in by the IP that there was large scale replacement of brickwork on the front façade' iv) No plans were submitted to WCC in compliance with the conditions. It is necessary to consider also the involvement of the officers from WCC, and in particular Mr Robert Ayton MA, MSc. MRTPI, IHBC, who is Head of Design and Conservation in the Central Area Team of WCC. According to his evidence, he visited the building in 2014 to inspect the "completed repointing works." He described the removal of the ribbon pointing (the subject of the earlier complaint) and its replacement by more appropriate pointing. Consents were then granted in 2014, which were made on applications submitting details discharge Condition 2. The applicant IP described the work as "repair and repoint the front façade." One of the documents relating to the submission of the application is a file note of a meeting between the IP's architects, Messrs Fielden and Mawson, and Mr Ayton and his team, on 7 th May 2014. It describes the front elevation as being " cleaned up and repointed. " That meeting records the fact that the work had been done in breach of the condition, but that a retrospective application could be made to discharge that condition. That approval was granted on 8 th September 2014 under delegated powers. Thus, the work done to the facade, which should have been approved in advance by virtue of conditions 2 and 3, was now approved. The IP now wanted to apply for a different scheme, which included a new storey added to a link between the two buildings. Mr Ayton stated in an email of 9 th February 2016 to the IP and its architects "There is a problem I am afraid………………………. Your proposals now include the addition of a new storey to the link. These are changes that are much more significant than non-material or other minor amendments. Therefore I am afraid that you need to apply for the whole scheme, as revised. Applications for planning permission and listed building consent are required. Clearly, in our assessment we will only focus on the revised elements, because the rest has consent…………………………... " As I shall come to, it was common ground that that does not reflect the proper position in law. The application as made sought a variation of the 2011 permission to permit an extension of time for the development, and for the redesigned link, albeit that the extra storey was not now included. Meanwhile the revision to the Westminster City Plan was moving towards the final stages of its approval process. It was adopted in July 2016, having gone through examination, and is part of the Development Plan for the purposes of Part III of TCPA 1990 . It applied a new policy on Basement Development (CM28.1). That policy was accompanied by a substantial reasoned justification. Basement developments had caused concern in various respects, including the effect of the disruption extending over a lengthy period. This passage appears therein: "The construction works associated with basement excavation can often have a serious impact on quality of life and often last longer than other residential extensions with the potential to cause significant disruption to neighbours during the course of works. This has led to significant concern and complaints from local residents in Westminster in recent years. Planning has limited powers to control the construction process and its impacts and must take account of overlap with other regulatory regimes, but it does have an important role in protecting amenity. Applicants for basement development must therefore demonstrate reasonable consideration has been given to potential impact of construction on amenity and this is linked to the council's emerging Code of Construction practice which seeks to create a clear link between planning and other relevant legislation and processes, ensuring these work together and issues are followed through and enforced where necessary. Work to basement vaults can restrict the space available for services in the highway and may make it difficult to access cables, pipes, sewers, etc. for maintenance and to provide essential items of street furniture. In order to ensure that services and essential street furniture can be provided, adequate space must be available between the highway and any excavation proposed under the highway." The policy itself falls into four parts, of which A and C are relevant. i) Under part A, all applications are required to be accompanied by a detailed structural methodology statement. All applications are required, inter alia, to be designed and constructed so as to minimise the impact at construction and occupation stages on neighbouring uses and the amenity of those living or working in the area, on highway users and traffic and highways. ii) By part C, basement development to existing residential buildings, or in new build residential development adjoining residential properties where there is the potential for impact on those properties "will (1) - (2) …………………………………. (3) not involve the excavation of more than one storey below the lowest original floor level, unless the following exceptional circumstances have been demonstrated: (a) that the proposal relates to a large site with high levels of accessibility such that it can be constructed and used without adverse impact on neighbouring uses and the amenity of neighbouring occupiers. (b) that no heritage assets will be adversely affected." Patently, this development fell to be considered against that policy. It proposed a very substantial basement extension, with the creation of two new basement floors. The top basement floor would contain a kitchen, laundry cinema and TV room, games room, gym and the upper part of a double storey swimming pool. A new lift in the Hays Mews area would pass through it. Below that would be a floor with a sauna, steam room, hot tub and the lower part of the swimming pool space, and below that another floor containing plant. The lowest floor (which is rather smaller) would contain plant and the base of the lift shaft. On 11 th May 2016 Ms Paula Kelly, the agent for the Claimant, had raised with Mr Ayton the issue of the basements. On the same day Mr Ayton informed her that the current applications were " for relatively minor changes " to an existing planning permission (that of 2011) and that the majority of the works had been approved previously, including the basements. She pressed the point, asking whether he was saying that neighbours could not object to the basement level extensions, and received this reply: " You can object, but since we have approved it already (and it can be built) your objection is unlikely to have much weight I am afraid." On 8 th August 2016 an officer's report was prepared. This was a delegated matter, so did not go before any committee of members. It recited the planning history. While the WCC Unitary Development Plan was referred to, Policy CM28.1 was never addressed in the Report. A report was also made on the application for Listed Building consent. The planning application decision notice includes the conditions. It does refer to many Development Plan policies, but not CM28.1. However, the Listed Building Consent, issued the same day, includes an "Informatives" section, which states that it took into account, among polices of "particular relevance" Policy CM28.1, and it states that WCC has had regard to, inter alia, NPPF , and the City Plan of July 2016 (including the Basements Revision). On 1 st September 2016 the Claimant's agent Ms Paula Kelly asked Mr Ayton and his assistant Mr Giles " whether if a fresh application were required whether the Council would have permitted it in light of the Council's latest policy on the development of basements in Westminster." The answer was given that WCC considered that the 2011 permission had been implemented through the works to the façade. When Ms Kelly pressed her point, she received this response from Mr Ayton on 7 th September 2016 " I think it is likely such a proposal would be refused if it was submitted as a new application today. This is of course a purely academic question given that, in our opinion, the planning permission and listed building consent have been commenced ." Against that background, these proceedings have been issued. The Claimant's case The logic of Mr Lockhart-Mummery QC's argument is i) The development permitted in 2011 was never commenced within the terms of the conditions and of the Act. WCC's treatment of it in 2016 as extant was erroneous, and thus there was no basis in law for an application or grant under s 73 TCPA 1990 ; ii) Even if the development had been commenced the revised scheme had to be considered against the new Development Plan policy, and was not. WCC wrongly assumed that all it had to address were the changes in the scheme then proposed. He also argued grounds relating to the treatment of the application in the context of s 16(2) LBCAA 1990 and NPPF . Mr Lockhart-Mummery therefore argued the following grounds. Ground 1 : The 2014 application was made pursuant to s 73 TCPA 1990 . That provision may only be used if the 2011 permission remained extant. In fact, it had expired because none of the development permitted by it had been commenced. S 56 TCPA 1990 sets out when that occurs. For the purposes of s 91 s 56(3) states that development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. It follows that the works in issue must be comprised within the development for which permission was granted. By s 56(4) "material operation" is defined as (a) any work of construction in the course of the erection of a building; (aa) any work of demolition of a building…………………" It is accepted that in Field v First Secretary of State [2004] EWHC Admin it was held that in exceptional cases the carrying out of an act of development permitted by the permission may operate to begin permitted development. On 7 th May 2014, a file note of a site visit by the WCC officers (including Mr Ayton) and the IP's architects describes the front elevation as having been "cleaned up and repointed." That work was discussed in the context that it was work included in the permitted development. In a letter from the IP's architects to WCC on 18 th August 2014 work done to the façade was described as (work to) "repair and repoint the front façade. This work was completed by November 2011 ." The letter called them " repair works ." The application by the IP of 18 th August 2014 for approval of details, described the work done as "Wash down brickwork with weak acid Cut out existing brick and review (50 nr) Rake out and repoint ribbon fashion pointing with flat, twice cut top and bottom and both side of perps (sic) Additional brick replacements Brick replacements to left hand side of front door Change style of pointing- rake out and repoint brickwork, tuck style pointing" That application also stated that the development had started on 1 st January 2011. Mr Ayton's own evidence for WCC describes the work done as " repointing works. " The plans referred to do not show any works to the brickwork of the façade, save as previously described. The works of pointing carried out, even if as substantial as the IP now claims, were not works for which permission had been granted. They were works of repair, not works of construction in the course of the erection of a building. No demolition was permitted by the permission, nor was any demolition carried out. One cannot describe the replacement of bricks on the scale noted here (50) as demolition. Further the works relating to the provision of the current central pipe have nothing to do with what was permitted, which was for the removal of the central pipes, and the provision of rainwater pipes at the edges of the house, and the soil pipe rerouted internally. The taking down of walls cannot be relied on as a work of construction in the course of the erection of a building- see Ceredigion CC v Nat Assembly for Wales [2001] EWHC Admin 694 [2002] 2 P & CR 6 at [19] per Richards J. A ground argued in the Claim (Ground 1(3)) that no approval had been sought under a condition relating to waste storage was no longer pursued in the light of the evidence filed by WCC. Ground 2 It is common ground that on a s 73 application the LPA was obliged to comply with s 70(2) TCPA 1990 and s 38(6) of PCPA 2004 . Thus, it had to have regard to the development plan and any material considerations (s 70(2) TCPA ) and then determine the application in accordance with the development plan unless material considerations indicated otherwise (s 38(6) PCPA ). Reference was made to Pye v Sec of State for the Envt [1998] 3 PLR 72, approved in Powergen UK PLC v Leicester City Council [2000] JPL 1037 [2001] 81 P &CR 47 (CA) per Schiemann LJ. While the 2011 permission was a matter to be considered in 2016, the 2016 application still had to be determined in accordance with the statutory tests. WCC wrongly misdirected itself in taking the position that the 2011 permission can be built, so that the objections to the development proposed in the 2016 application can be set aside. If the 2011 permission were extant (i.e. if Ground 1 fails) then the 2011 permission can be implemented. But in fact the development now applied for and permitted is a materially different form of development, not capable of being built under the 2011 permission. The 2011 permission was a material consideration, but that did not result in WCC being relieved of the duty to consider the whole of the now proposed development against the development plan and all other material considerations. WCC had fundamentally misdirected itself, as shown in the emails. Further, before the Court its counsel had argued that an LPA could not "claw back" an earlier consent. That is illogical. If the previous permission had been implemented in time, the refusal or grant of a later application could not "claw it back." This error informed the officer's report which stated that the elements of the 2011 permission " do not form part of this proposal ." WCC's arguments are exactly those rejected in Pye and Powergen . There was an unequivocal Development Plan policy (CM28.1), which the 2016 proposal would breach. The application was accompanied by none of the required technical information, and was clearly in breach of paragraph C 3(a) and (b). The new policy on basement development should have been addressed, but was not had regard to. It goes entirely unmentioned in the officer's report. Its only mention is in a formulaic note appended to the Listed Building Consent. Given the view of Mr Ayton that permission for the building works would have to be refused if submitted as a fresh planning application, it is not credible that the policy was had regard to. There is not even a discussion of whether an exception should be made to it. It is incumbent on the decision maker to establish whether a proposal accords with the development plan as a whole- see Lindblom LJ in SSCLG v BDW Trading Ltd [2016] EWCA Civ 493 at [20]- [23]. Since the proceedings were issued, Mr Ayton has put in a witness statement asserting that he and his colleague Mr Giles did take account of the new policy. No regard should be had to that witness statement. The time for setting out the reasoning of the decision maker was in the officer's report. Reference was made to Shasha v Westminster City Council [2016] EWHC 3283 and to R (Ermakov) v Westminster City Council [1996] 28 HLR 819 . Further, WCC failed to comply with its duty under s 66 LBCAA 1990, and also failed to have regard to a material consideration, namely the policies in NPPF on listed buildings. Ground 3 The Listed Building application also required consideration in the light of the Development Plan, including the policy CM 28.1, and in the light of NPPF . Further, WCC was bound, but failed, to consider the requirements of s 16(2) LBCAA in respect of the whole building. The matters under Ground 2 in relation to the grant of planning permission are repeated in the context of Listed Building Consent. The case for Westminster City Council Before turning to the specific grounds, Mr Lewis submitted in his skeleton that i) The exercise of planning judgement and weight are for the decision maker and not the Court: Seddon Properties v Sec of State for Envt [1981] 42 P and CR 26. A s288 TCPA (and therefore also a judicial review) challenge is not to be used as a cloak to rerun a case on the planning merits, and a claim that an Inspector (or LPA) has reached a Wednesbury unreasonable conclusion faces a particularly daunting task ( Newsmith v SSETR [2001] EWHC Admin 74 per Sullivan J). ii) A material consideration for the purposes of s 70(2) TCPA 1990 and s 38(6) PCPA 2004 , is one which might cause the decision maker to reach a different conclusion if he had taken it into account; Bolton MBC v Sec of State for Envt [1991 61 P and CR 343@352 per Glidewell LJ. The question whether a particular factor is material is a matter for the Court, but the weight to be given is a matter for the decision maker: Tesco Stores Ltd v Sec of State for Envt [1995] 1 WLR 759 (HL) per Lord Keith @ 764G-H; iii) A previous grant of planning permission is capable of being a material consideration: N Wilts DC v Sec of State for Envt [ 1992] 65 P and CR 137. The "fall-back" position - i.e. that a previous planning permission could be implemented -must be taken into account: R(Ahern) v Sec of State for Envt [1998] JPL 357; iv) The interpretation of Development Plan policies is for the court, but their application, which involves questions of judgement, is for the decision maker. Their provisions should not be construed as if they were statutes or contracts: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 per Lord Reed including at [19] reliance on Tesco v Sec of State for Envt [1995] 1 WLR 659@780 per Lord Hoffman; v) Reference was also made to R (Goodman) v Lewisham LBC [2003] EWCA Civ 140 and R (Wye Valley Action Assoc) v Herefordshire Council [2011] EWCA Civ 20 ; vi) A planning officer granting permission under delegated powers is required to give reasons for his decision, pursuant to Reg 7 of the Openness of Local Government Bodies Regulations 2014: see R(Sasha)v Westminster City Council [2016] EWHC 3283 at [27]- [31]. vii) Reference was also made to S Bucks DC v Porter (No 2) [2004] 1 WLR 1953 on the giving of reasons by the Secretary of State or his Inspectors in Decision Letters. Ground 1 The 2011 permission was commenced by virtue of the works to the front façade. Malvern Hills DC v Sec of State for Envt [1982] JPL 439 CA (the case about pegging out the line of an access road) shows that one should adopt a benevolent approach, and that very little was required to satisfy the requirements of what is now s 56 TCPA 1990. Reference was also made to Field v First Secretary of State (supra) per Sullivan J at [41]- [46]. WCC was entitled to regard the works to the façade as "works in the course of erection of a building" which is a material operation for the purposes of s 56(4). WCC had required that they were the subject of Condition 2 of the original 2011 planning permission and listed building consent. The 2016 officer's report sets out that it was considered that the works were retrospectively approved, and materially implemented the permission. In any event the works involved more than just "cleaning and pointing." Mr Ayton's evidence showed that it amounted to the replacement of all the objectionable pointing carried out in 2010. The evidence of Messrs Ali and Maric for the IP shows that the façade was cleaned and repaired. It follows that works of "construction" and "demolition" were carried out before the permission expired. The Council's interpretation lies within the range of reasonable responses to the question, as per Goodman and Wye Valley. Ground 2 WCC did take the new Development Plan policies into account. The policies of the Development Plan on urban design and conservation are referred to in the delegated report on the planning application, and in the reasons for the imposition of condition. The reference to the previous version of the Plan (City Plan 2013) was a pro forma reference not updated by the WCC software. It was accepted that the issue raised in policy CM 28.1 was not in fact addressed in the officer's report, but that does not mean it was not taken into account. It was taken into account. The listed buildings consent states in the "Informative" that it was of particular relevance. An LPA does not have to recite the fact that a proposal accords with the Development Plan: see Lindblom LJ in SSCLG v BDW Trading Limited [2016] EWCA Civ 493 at [27]- [39]. The 2011 permission was a material consideration. As it had been implemented it could not be "clawed back" (sic). That distinguished this case from Pye and Powergen . The differences between what was permitted in 2011 and what was applied for in 2016 were not "significant" or "materially different" as the Claimant avers. The officer gave the apt description of them as "minor material amendments." The basement excavations as between those proposed in 2008 and in 2016 show no significant change. It is for these reasons that the officers focused on the revised elements and why they had thought it "academic" that it was "likely that the 2016 proposal would have been refused if submitted as a new application today." The 2011 permission was a relevant consideration. The Council was entitled to, and did, consider the "fallback" position that if the 2016 application were refused, the 2011 permission could be implemented. As to the alleged failure to perform the duty under s 66(1) LBCAA 1990 , the fact that it is not recited is not fatal, provided the duty has actually been performed: Jones v Mordue [2015] EWCA Civ 1243 [2016] JPL 476 , [2016] 1 WLR 2682 , [2016] 1 P &CR 12 per Sales LJ at [26] to [29], and R(Garner) v Elmbridge BC [2011] EWCA Civ 891 at [8] per Sullivan LJ. The officers were patently well aware of the fact that they were dealing with a listed building which adjoined another. All the above is supported by the documents in any event, without reference to Mr Ayton's disputed witness statement. Ermakov does not render all of a statement such as this as inadmissible- see Sasha at [43]. Even if all the matters said in Ground 2 not to have been addressed, had been addressed, it is unlikely that the decision would have been any different. Ground 3 The same points with regard to the consideration of the Development Plan, and the consideration of s 66 LBCAA 1990 are taken under this ground. NPPF added nothing new to the way in which the significance of heritage assets had to be considered. That was the case under the predecessor policies in PPS 5. Even if all the matters said in Ground 3 not to have been addressed, had been addressed, it is unlikely that the decision would have been any different. The case for the Interested Party Mr Steel QC adopted the submissions already made by Mr Lewis. He concentrated on what the IP saw as the implementation of the 2011 permission by virtue of the works to the façade. By virtue of s 336 TCPA 1990 "building" includes any structure or erection, and any part of a building, ………" and "erection" in relation to buildings as defined in the subsection, "includes……..alteration and re-erection." S 56(4) defines "material operation," which includes "any work in the course of the erection of a building" and "any work of demolition of a building." The question of whether the works done were comprised within the development involves a question of fact and degree. They may include works which are ambivalent in nature and not unequivocally referable to the planning permission in question: see Ouseley J in Commercial Land Ltd v SSETR [2002] EWHC 1264 (Admin), followed in Green v SSCLG [2013] EWHC 3980 (Admin) per Cranston J and Silver v SSCLG [2014] EWHC 2729 (Admin) per Supperstone J. The works here consisted in part of the alteration and re-erection of the façade, which counts as works of construction in the course of the erection of a building by virtue of the definitions in s 336(1) TCPA 1990. They also constituted works of demolition, as occurred here. "Demolition" in s 56 does not have to be as extensive as "demolition" constituting development. A low threshold was set by Parliament in s 56(2): see Field at [41] per Sullivan J. The test in law is whether the works are more than de minimis : see E Dunbartonshire CC v Sec of State for Scotland [1999] SLT 1088 at 1094, endorsed by the Court of Appeal in Staffs CC v Riley [2001] EWCA 257 at [28] per Pill LJ. Mr Steel took me through the works carried out to the façade. He submitted that the fact that Conditions 2-4 were included in the consent showed that such works created a necessary implication that they were part of the development. The need for the work was discovered after the 2008 access and design statement had been submitted. The application in 2014 for approval of details, in its reference to brickwork, was a shorthand reference to work already carried out; see the terms of the application (Bundle C/86). The work of removing the pipework and of replacing brickwork amounted to material operations for the purposes of s 56. The roof was also rebuilt in part. 50 tiles were replaced, which suffices for an operation under s 56. Ground 2 The new policy is referred to on the Listed Buildings consent. It was unnecessary to list the polices one had regard to, especially when the report was not going to members. There is no evidence of any prospect of problems being caused to neighbours by the construction of basements. There are conditions in the permission which address matters such as noise. Reply by Mr Lockhart-Mummery QC There was no jurisdiction to consider the 2016 application unless there had been material operations for the purposes of s 56. Whether or not there had been such works is a matter for the decision maker, which in this case is the court: see East Dunbartonshire at p 1094 and Field. The fact that approval of details was given in 2014 cannot affect that question. The erection of the central downspout cannot be relevant. It is not shown in the application plans, which replaced the central pipes with an internal one (soil pipe) and two at the side \(rainwater|). Mr Lewis' submission that this development would have been permitted anyway is untenable in the light of the new policy CM28.1 Discussion and Conclusions There are in my view the following relevant issues: i) What was required to implement the 2011 planning permission? ii) Who decides whether the permission has been implemented: the local planning authority or the court? iii) Were works carried out which implemented the 2011 permission? iv) Did the WCC officers have regard to policy CM28.1 in considering the 2016 application? v) If not, should the Court quash the permission? To set those issues in context, it is necessary to identify the relevant legal principles affecting decision making. In determining a planning application, an LPA must i) have regard to the statutory Development Plan (see s 70(2) TCPA 1990 ); ii) have regard to material considerations (s 70(2) TCPA 19 90); iii) determine the proposal in accordance with the Development Plan unless material considerations indicate otherwise (s 38(6) PCPA 2004 ); iv) consider the nature and extent of any conflict with the Development Plan: Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 at [22] per Lord Reed; v) consider whether the development accords with the Development Plan, looking at it as a whole- see R(Milne) v Rochdale MBC (No 2) [2000] EWHC 650 (Admin) , [2001] JPL 470 , [2001] Env LR 22 , (2001) 81 P & CR 27 per Sullivan J at [46]- [48]. There may be some points in the Plan which support the proposal but there may be some considerations pointing in the opposite direction. It must assess all of these and then decide whether in the light of the whole plan the proposal does or does not accord with it; per Lord Clyde in City of Edinburgh Council v. the Secretary of State for Scotland [1997] UKHL 38 , [1997] 1 WLR 1447 , 1998 SC (HL) 33 cited by Sullivan J in R(Milne) v Rochdale MBC (No 2) at [48]; vi) apply national policy unless it gives reasons for not doing so- see Nolan LJ in Horsham District Council v Secretary of State for the Environment and Margram Plc [1993] 1 PLR 81 following Woolf J in E. C. Gransden & Co. Ltd. v. Secretary of State for the Environment [1987] 54 P & CR 86 and see Lindblom J in Cala Homes (South) Ltd v Secretary of State for Communities & Local Government [2011] EWHC 97 (Admin) , [2011] JPL 887 at [50]; vii) in considering whether to grant planning permission for development which affects a listed building or its setting, the local planning authority or, as the case may be, the Secretary of State shall have special regard to the desirability of preserving the building or its setting or any features of special architectural or historic interest which it possesses: s 66(1) LBCAA 1990. As is well known, planning permissions are not open ended. They must (s 91 TCPA 1990 ) contain a condition requiring that the permission is implemented during a specified time period: in this case three years. It is perhaps important to note that s 91(1) describes it thus (my italics): "(1) Subject to the provisions of this section, every planning permission granted or deemed to be granted shall be granted or, as the case may be, be deemed to be granted, subject to the condition that the development to which it relates must be begun not later than the expiration of— (a) three years beginning with the date on which the permission is granted or, as the case may be, deemed to be granted; or (b)such other period (whether longer or shorter) beginning with that date as the authority concerned with the terms of planning permission may direct." It may happen that, for whatever reason, that condition cannot been complied with. Like other conditions, application may be made to vary it. By s 73 "Determination of applications to develop land without compliance with conditions previously attached. (1) This section applies, subject to subsection (4), to applications for planning permission for the development of land without complying with conditions subject to which a previous planning permission was granted. (2) On such an application the local planning authority shall consider only the question of the conditions subject to which planning permission should be granted, and— (a) if they decide that planning permission should be granted subject to conditions differing from those subject to which the previous permission was granted, or that it should be granted unconditionally, they shall grant planning permission accordingly, and (b) if they decide that planning permission should be granted subject to the same conditions as those subject to which the previous permission was granted, they shall refuse the application. (3) …………………………………………… (4)This section does not apply if the previous planning permission was granted subject to a condition as to the time within which the development to which it related was to be begun and that time has expired without the development having been begun. (5) ……………………………………………." S 56 of TCPA 1990 is relevant by s 56 (2) and (3). It is helpful to set out s 56 (1) to (4) " Time when development begun . (1) Subject to the following provisions of this section, for the purposes of this Act development of land shall be taken to be initiated— (a) if the development consists of the carrying out of operations, at the time when those operations are begun; (b) ……………………………….. (c) ……………………………..... (2) For the purposes of the provisions of this Part mentioned in subsection (3) development shall be taken to be begun on the earliest date on which any material operation comprised in the development begins to be carried out. (3) The provisions referred to in subsection (2) are sections….. 91……… (4) In subsection (2) "material operation" means— (a) any work of construction in the course of the erection of a building; (aa)any work of demolition of a building; (b) –(e)………………………………….." As noted in the submissions made to the Court, in Field v First Secretary of State [2004] EWHC Admin it was held that in exceptional cases the carrying out of an act of development permitted by the permission, but outwith the list in s 56(4), may operate to begin permitted development for the purposes of s 56(2). While the terms of s 56 were the subject of extended submissions before me, in my judgment the critical question in this case is whether the operations relied on by WCC and the IP amounted to "any material operation comprised in the development" which is the fundamental test set out in s 56(2) of TCPA 1990, What did that involve? Plainly, it included any material operation specifically identified in the planning application. But what if the restoration and alteration of the building turned out to require more works than had been applied for? Here, it is relevant to consider what was proposed to the façade. There can be no doubt that the works shown to the brickwork in the application and its plans were very limited. However, there are few restoration projects where those executing them do not find that more work is required than anticipated. This permission expressly permitted the execution of works to the façade, and Condition 2 attached to the consent certainly allowed for works which had not yet been precisely determined to be approved. It follows then that the issue relating to the brickwork is not simply one of whether it was shown on the plans or described in the design and access statement. It need not have been for the reason just given, but to qualify it still had to be an operation within the meaning of s 56(4) or fall within the exceptional commencement operation of the type addressed in Field . Above all, it had to be an operation referable to the development. I do not thereby intend to apply a test of intention (which is without question irrelevant) but to consider whether it was referable, as in Staffordshire County Council v Riley & Ors [2001] EWCA Civ 257 [2001] JPL 1325. I have noted the evidence filed by the IP contending that there was substantial work done throughout the façade. Given the contemporaneous descriptions given by the Architects, the planning applications and the Planning Officer, I place no weight on it. Much more helpful was Mr Steel QC's taking me through the work in question, and the photographic record. I find the following: i) pointing had been carried out to the building which had harmed its appearance. WCC wanted it to be repointed in any event, and threatened enforcement proceedings if it were not carried out. the building was repointed in 2010-1 before the period when it was suggested that referable works were carried out; ii) the removal of the pipework involved some inevitable effect on the fabric, but nothing that could be called demolition. A few bricks were disturbed or removed when the stanchions were removed, but then made good. It would be absurd to describe that as demolition; iii) the replacement of the pipes did not take place as shown in the application or permission. So far as the brickwork is concerned, it consisted of making good of some very limited areas, totalling no more than 50 bricks in a brick façade of considerable size; iv) the replacement of about 50 tiles is similarly a matter of making good; v) some of that work was carried out after 22 nd May 2011. Work carried out before that date is irrelevant, as neither party contends that the 2008 permission was ever commenced. But my findings of fact on the issue of the commencement of works must relate to more than the disputed items of work themselves. The application of 28 th July 2011, which sought an extension of the time for commencement of the 2008 consent, was sought and granted on the basis that none of the works thus authorised had been commenced. I also find as a fact that WCC as LPA treated the work carried out between January and November 2011, as described in the application for approval of details submitted on 18 th August 2014, as works authorised by the 2011 permission. Some of it occurred after the date of the 2011 consent. Further no challenge has been made at any time to the reserved matters consent of 2014. If the Claimant is right in his claim now that no works comprised in the permitted development had occurred, then the 2014 approval of details was itself open to challenge. It was granted on 8 th September 2014 shortly before the permission was due to expire. A judicial review challenge could have been made, and been promptly made, after the 22 nd September 2014. That has another significance. The developer IP has submitted that application, and had it approved by the local planning authority, on the basis that the work carried out was works to the façade of the kind whose approval was required under Condition No 2. I have set out my conclusions on the factual matters. If I were the decision maker, I would be very attracted by the factual conclusions which the Claimant's seeks to persuade me are to be drawn. Mr Lockhart-Mummery submits that this court is the fact finder for the purposes of determining whether there was jurisdiction to consider the s 73 application. I accept that submission up to a point. This Court may have to find facts which are disputed and which have not themselves been determined within the planning history. But if a decision in that planning history has been made on a particular factual basis which is alleged to be erroneous, then the time for challenging it was at the time it was made, and not two years' later in the context of a further discrete application. That is in essence what the Claimant's claim is seeking to do, which in my judgement is impermissible. Even if I had thought that it had merit, I would decline to exercise my discretion to quash the 2016 decision on this ground. I therefore dismiss the Claim under Ground 1. I turn now to the other main basis of Mr Lockhart-Mummery's case, namely the alleged failure to address Policy CM28.1. Here he is on much firmer ground. There can be no doubt that this proposal involved the provision of basements, and that it was caught by the new policy CM28.1. WCC was bound to have regard to it. What is also quite clear, and I so find, is that the WCC officers had approached this application in an entirely inappropriate mindset. The email of 9 th February 2016 that " There is a problem I am afraid………………………. Your proposals now include the addition of a new storey to the link. These are changes that are much more significant than non-material or other minor amendments. Therefore I am afraid that you need to apply for the whole scheme, as revised. Applications for planning permission and listed building consent are required. Clearly, in our assessment we will only focus on the revised elements, because the rest has consent…………………………... " contains a very straightforward error of law. As Pye and Powergen make clear, the whole scheme now applied for had to be considered in accordance with the relevant tests. I do not accept Mr Ayton's evidence, submitted since the challenge was made, that in fact he and his officers did have regard to Policy CM 28.1 That policy was well advanced towards adoption when that email was written. Mr Ayton's emails of 11 th May and 7 th September 2016 to Ms Kelly bear out the fact that he was directing his mind only to the fact that there was an extant permission, and that all they were addressing were the changes. In most cases it is a straightforward matter to approach them on the basis that policies not referred to in the planning officer's report could still be taken as having been had regard to. This is not such a case. It is on any view remarkable that a policy of such obvious and direct application to the proposal earned not a single mention in the report on the planning application, not least when an objection had been made which specifically referred to it. Its only appearance was in the informative to the listed building consent, to which it was much less relevant. Mr Ayton knew exactly what importance it had when noting that, had the application been made for the first time, it would have been refused. I also reject as misconceived the submission that one could not "claw back" the earlier consent. The world is full of schemes where a subsequent change in planning policy meant that they would not be approved if resubmitted. Indeed, that was exactly the climate which existed in the late 1970s and early 1980s when schemes approved under older planning regimes would be refused under newer ones, which led to many of the cases on whether operations had been commenced. Changes in circumstance can relate to the facts on the ground, or the policy climate, or both. The duty of WCC was to assess this application against the Development Plan as it stood in 2016 and all material considerations as at that date. Given the terms of s 38(6) PCPA 2004 , the starting point was the development plan policy, and it was then for WCC to determine if material considerations justified a different outcome. One such consideration, and no doubt one to which WCC might have wanted to ascribe great weight, was the fact that there was a permitted scheme in existence, which if it went ahead would include the restoration of the listed building. It may be that, on applying s 70(2) TCPA 1990 and s 38(6) PCPA 2004 that fallback position would have outweighed the clear objective of CM 28.1 of preventing a development with basements such as these from being built, with the consequent disruption of the street scene and of neighbours for an extended period. But assessment of the weight to be given to the fallback position must have looked at the likelihood of it going ahead without the proposed 2016 amendments, and of the likelihood of a scheme not going ahead which would not have included basements of the scale proposed here. Those considerations were simply never explored by WCC. I do not suggest what weight should be given, nor how the competing advantages or disadvantages should be weighed the one against the other, or the s 38(6) balance determined. That is a matter for the local planning authority, and not for the Court. Ground 2 therefore succeeds, subject to consideration of whether the decision would have been the same in any event. As to Ground 3, I do not consider it arguable that WCC was not aware of the fact that it was dealing with listed buildings, and that therefore it had to address matters under s 66 LBCAA 1990 . I also consider that there is nothing in NPPF which serves to undermine that aspect of the decision making process. I return therefore to the effect of my conclusions on Ground 2. Given my conclusion that WCC approached this case with the erroneous mindset that it could not refuse permission for something which was in large part already approved, I do not consider that this is a case where I can conclude that, had it approached its duties in accordance with the law, the outcome would have been the same. I therefore quash the permission. As to the listed building consent, it must go hand in hand with the permission. I therefore quash it as well. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII