Case No: C1/2008/1759
Neutral Citation Number: [2008] EWCA Civ 982
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ADMINISTRATIVE COURT, QUEEN’S BENCH
(MR JUSTICE MITTING)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 30th July 2008

Before:

LORD JUSTICE RICHARDS
and
LORD JUSTICE RIMER
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Between:

	ROBERTS
	Appellant	
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BRENT COUNCIL	
Respondent	

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Ms N Lieven QC (instructed by Messrs Leigh Day & Co) appeared on behalf of the Appellant.

Mr E Robb (instructed by Messrs Lewis Silkin & London Borough of Brent) appeared on behalf of the Respondent.
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Judgment
Lord Justice Richards:

1.	This is an application for permission to appeal against a judgment of Mitting J refusing permission to apply for judicial review. 

2.	The target of the challenge is a grant of planning permission by the London Borough of Brent for temporary buildings for a new school on Wembley Park Sports Ground.  The claimant seeking to bring the challenge is Mr Patrick Roberts, the Chair of the Wembley Park Action Group, which is an umbrella organisation of individuals and groups set up in opposition to the development of a school on the site.

3.	Brent wishes to develop Wembley Park as the site of a permanent school for approximately 1600 children, aged between three and eighteen.  It is proposed that the school will be run as an independent academy by a body called ARK Academies, pursuant to a funding agreement to be entered into between ARK Academies and the Secretary of State.  

4.	The intention in the first instance, however, is to erect temporary buildings to accommodate 60 pupils in September 2008 and a further 240 pupils in September 2009, making a total of 300 pupils.  An application for planning permission for that purpose was approved by Brent’s planning committee on 3 June 2008 and the grant of planning permission was issued the following day.  The permission was subject to a condition limiting use of the temporary buildings to three years.  Brent proposes to erect the temporary buildings in the period between now and this September in preparation for the first 60 pupils.

5.	It is intended that a separate planning application will be made in respect of the proposed permanent school on the site, which would replace the temporary buildings as from September 2010, but no such application for permission was before the planning committee and the committee was at pains to consider the application for permission for a temporary school on its own separate merits.  The central issue for the court is whether the committee arguably fell into legal error by confining its attention to the temporary school and disregarding the impact to which a permanent school would subsequently give rise and, if it did fall into any such error, whether it is an error of any consequence.

6.	The action group opposes the proposed school on a number of grounds, including the loss of, or reduction in access to, playing fields and open space, and the adverse impact it would have on traffic levels in the area.  The group has expended large sums of money on consultants’ reports, upon which it relies in support of its objections.  Its objections are evidently deeply felt and have been put forward with vigour.  It seems fair to say, however, that those objections are directed primarily at the permanent school of 1600 pupils rather than at the temporary buildings or the school of up to 300 pupils to be accommodated in them.  

7.	In any event, the challenge to the grant of planning permission in respect of the temporary buildings is based only on the linkage with the permanent school rather than upon any alleged flaw in the assessment of other planning considerations relevant to the grant of temporary permission.  

8.	The committee’s decision was based on a very detailed officer’s report which contained the following passages relevant to the issue before us.  First, under the general heading ‘Remarks’, the introduction stated:

“This report is concerned only with the temporary accommodation as described above and cannot discuss the technical detail of the permanent application at this stage as none has been forthcoming.  When such an application is received it will be subject to separate investigation.  However, in the interests of clarity, the applicants have provided a feasibility study which discusses the options for the permanent application and Members may benefit from being reminded of the procedures that have been followed that have resulted in this application for temporary school accommodation.  It should be made clear at this stage that approval or otherwise of this application does not confer approval or otherwise on any future application, though this decision may be a material consideration of any future application.”

Later, under the sub-heading “Pre-Empting Future Decision”, the report stated: 

“Concerns have been raised that granting temporary permission would effectively pre-determine an application for the main academy building.  In order to address these concerns it is important to consider the position the Council would be in if the main academy were not forthcoming in relation to this school. The Council has responsibility for the students if they enter the system.  Should the temporary permission expire before the main academy building is completed, the Council will be required to continue to educate the 300 pupils of this temporary school.  Children & Families have confirmed that under the circumstances of the main academy scheme being refused planning permission, the students would be distributed amongst other schools in the vicinity.  Whilst this is far from ideal, similar distributions have occurred in the past and so the possibility that this might have to happen would not be an issue of overwhelming weight in planning terms to argue for approving a main academy building simply because 300 students have started at the temporary school.”

9.	The next paragraph repeated that the temporary school could and should be viewed separately from the main academy and should be determined on its own merits.  There was then a section providing brief further information on the proposed academy. It stated that the feasibility study was subject to ongoing discussions and was by no means an indication that the main academy building was a fait accompli. A September 2008 planning application was anticipated for the main academy, “…which will provide local residents, businesses, schools, objectors and members with the opportunity to consider that scheme on its own merits.”  The proposed temporary buildings were located such that the impact from the construction of the main academy would be minimised.

10.	In written supplementary information for the committee it was recorded. under the heading “Advice from Borough Solicitor”, that: 

“The Borough Solicitor has sought Counsel’s opinion on the committee report, and wishes to emphasise the need to view the proposed temporary buildings wholly separately from any plans for the permanent Academy, particularly in respect of any concerns the committee or others may have over a decision here pre-empting a decision on the permanent Academy buildings.”

That was emphasised at the meeting of the committee on 3 June when the decision was taken.  The minutes of that meeting record the planning manager as saying: 

“In respect of any concerns the committee or others may have over a decision here pre-empting a decision on the permanent Academy buildings he referred to advice by the Borough Solicitor which emphasised the need to view the proposed temporary buildings wholly separately from any proposals for a permanent Academy.”

11.	For the claimant, Miss Lieven QC submits that there can be no possible doubt that Brent wishes and intends the temporary use of the site will become a permanent use for an academy of some 1600 pupils.  One of the most significant planning issues in relation to any permanent use of the site is that of traffic impact.  However, the traffic assessment submitted as part of the temporary application dealt only with the impact of the use of the temporary buildings and made no reference to the traffic impacts of a permanent use of the site, which would self-evidently be far greater.  It is submitted that that point is quite clear even without any of the precise details of the permanent application.

12.	It is further said that it is clear from the officer’s report and legal advice that the committee proceeded on the basis that it could not take into account at all the permanent application or the potential consequences of a permanent application.  In that connection, reference is also made to the acknowledgement of service as underlining Brent’s position, that it could not take account of the consequences of the permanent permission when considering the temporary application; although for my part I think the matter needs to be determined, in a case of this kind, by reference to the contemporaneous documents rather than a later legal submission.

13.	Miss Lieven submits that the committee’s approach was wrong in law.  It is well-established in planning law that if the grant of planning permission has a possible precedent effect in respect of the future grant of planning permission then that is a material consideration.  Reference is made, in the written skeleton argument, in particular to Poundstretcher Ltd v Secretary of State for the Environment [1988] 3 PLR 69, where there was an extensive survey of earlier cases.  It is accepted that most of the cases concern the situation where there is argued to be a precedent effect from the grant of permission on the ability of the local planning authority to refuse permission in respect of other sites, but it is submitted that the principle must be all the more strongly applicable where the grant of permission on one site is going to make it extremely difficult to resist the future grant of another and potentially more damaging permission on the same site.  

14.	That last point is directed at the basis on which Mitting J distinguished the line of cases relied on by the claimant.  He reasoned that the present case concerned one site on which there will be two separate applications, and that the considerations applicable to each application are different.  If an application is made for permanent permission, the committee will have to consider that application on its own merits.  He therefore considered that the claimant’s argument conflated two situations and that the council addressed the situation correctly.

15.	In submitting that the judge erred in adopting that line of reasoning, Miss Lieven submits that the grant of temporary permission here is a very strong precedent for the ultimate grant of permanent permission, since it establishes the principle of school use on the site -- albeit use on a temporary basis -- and it will in practice be very difficult to resist a permanent application once temporary permission is granted.  It would be difficult to refuse planning permission when the consequence will be that up to 300 children will have to be moved from their existing school and reallocated across the borough.

16.	It is submitted that the committee therefore failed to take into account a material consideration in failing to consider the implications of the precedent effect and in thinking that it was not even entitled to take such a consideration into account.  It could and should have considered whether there was a genuine possibility that there would be an application for permanent permission, which was clearly the case, and whether that application could lead to seriously harmful planning consequences, which, it is submitted, was again clearly the case.  It should then have considered those consequences in the planning balance.  For those reasons it is submitted that the claimant has an arguable claim.

17.	Whilst paying tribute to the force and clarity with which Miss Lieven presented her case, I am not persuaded that the case is well-founded.  The point about precedent effect as set out in the case law of which Poundstretcher forms a part is that the grant of permission for a particular form of development on one site in an area may make it very difficult to refuse permission for the same form of development on other sites in the area if the circumstances are the same, in part because of the importance of consistency in decision-making.  Thus the grant of planning permission on the one site may have wide consequences for the area as a whole.  There may be a proliferation of similar developments, so the impact is magnified.  It is in that way that the precedent effect may be a material consideration.  One sees that line of reasoning spelled out, for example, in the passage from the judgment of Lord Widgery CJ in Collis Radio v Secretary of State [1975] JPL 221, which is quoted at page 73 of the report of the Poundstretcher case.  I would add that treating precedent effect in that way as a material consideration does not involve an examination of the detail of other applications, which may well not yet have been made and the details of which will not necessarily be known, but involves looking at the broad effect of a number of developments of the same kind as that before the committee.  

18.	That is plainly not the situation in the present case.  The concern here is not with other applications of a similar nature or the wider consequences of that for the area.  The concern here is with a materially different potential application on the same site, namely an application for a permanent permission in respect of a much larger school.  

19.	Having said that, I accept that the grant of temporary permission in this case was indeed capable of having a precedent effect of a kind, though a different kind from that dealt with in Poundstretcher and like authorities.  That is because the presence of up to 300 pupils on the site, who would have to be relocated elsewhere if a future application for permanent permission were refused, could be a material consideration in the context of any future applications.  Indeed, the fact that the principle of use on the site, albeit on a temporary basis, had been established could also be a material consideration.  But the committee was plainly aware from the advice of its officers of that point, and the point was addressed in terms by obtaining confirmation from the children and families concerned that they would be redistributed among the other schools in the vicinity should permanent planning permission be refused.  This meant that by granting temporary permission the committee were not creating an argument in favour of permanent permission of such strength as effectively to pre-empt individual consideration of the permanent application on its own merits when it was made.  Inevitably, the fact that up to 300 pupils were being schooled on the site would have some weight in relation to any permanent application, but I do not accept that it would be very difficult in the circumstances for the committee to refuse a permanent application.  It seems to me that appropriate precautions had been taken to ensure that it would not have such weight and that any permanent application could properly be assessed on its merits.

20.	There was no question of the committee having otherwise pre-empted its decision in respect of any permanent application.  Miss Lieven does not submit otherwise.  The committee was advised in strong terms of the need to focus on the merits of the temporary application and to leave any permanent application for separate consideration so as to avoid any predetermination, and there is nothing to suggest that the committee failed to follow that advice.

21.	In my judgment, therefore, the relevant point about precedent effect was taken into account by the committee as a material consideration.  I do not accept the argument that the grant of temporary permission paved the way for a permanent permission to such an extent that the committee was obliged as a matter of law to take into account the potential consequences of any permanent permission, including the environmental impact of a permanent development and especially the traffic impact of a school of 1600 pupils.  I see the force of the point advanced with vigour by Miss Lieven that the committee may have been entitled to go further and to look at the broad implications of a permanent development, whereas it was advised that it should look at the temporary application wholly separately.  But if and to the extent that there was thereby an arguable error of law in the committee’s approach, it seems to me to be one of no consequence.  The practical reality was that the committee was focusing on the temporary permission so as to prevent predetermination of any permanent application, and I cannot see any realistic possibility that the substance of the committee’s assessment might have been different had it been advised that it was open to it to look at the broader implications of any permanent application or development.  To my mind the committee was not obliged to go any further than it did and the reality of the position is that it would not have done so if it had been told that it could.

22.	I think it is also very important to consider the broader implications of the submission that the committee was bound, when examining the application for it, to examine the merits and consequences of a separate application for a permanent school that was not before it and had not yet even been made.  It seems to me that such a contention plainly goes too far.  The application in respect of the temporary school did include the feasibility study in respect of the permanent school, but the committee did not and could not at that time have the full information necessary for a proper assessment of the consequences of the larger permanent development.  All that would fall to be assessed if and when an actual application was received and in the light of the detailed nature of that application.  The committee’s approach ensured that it would be in a position properly and fairly to carry out that assessment, without having in some way pre-empted it by the grant of temporary permission.  In my judgment that was an entirely appropriate approach.  

23.	Accordingly, I do not consider there to be a real prospect of successfully appealing the decision of Mitting J and I would refuse permission to appeal.  That course, if agreed to by my Lord, makes it unnecessary to consider the consequential applications that would otherwise have arisen for a protective costs order and a stay, each of which, I have to say, in my view would have placed very substantial additional hurdles in the claimant’s path.

24.	The decision of this court, again if my Lord agrees with me, means that the objectors cannot challenge the grant of temporary permission, but I hope that it will be clear to them that this leaves entirely unaffected their right to advance their objections to any application for permanent permission and, if so advised, to bring a legal challenge to any grant of permanent permission.  As it seems to me, the approach that the council has adopted in respect of the temporary permission leaves the question of permanent permission entirely open.

Lord Justice Rimer: 

25.	I agree, and there is nothing that I can usefully add.  

Order:  Application refused