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Ash
Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience:  Solicitor with 5+ years experience
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Good morning. My son is involved in a planning dispute in

Resolved Question:

Good morning. My son is involved in a planning dispute in that local planning officers have approved a neighbours extension which will place a brick wall surmounted by a pitched roof just 2.25 metres from the window. The approval was given under delegated authority by Council officers. As the extension contravenes so may of the Councils policy rules and much more of their guidance, which can be open to interpretation, we decided to appeal. The only recourse we have is to seek judicial review of the decision, and our time expires tomorrow. We were only able to get legal advice last Friday, despite ringing and emailing umpteen legal practices and chambers, when my son's solicitor returned to work her father having suffered a stroke. She was willing to take action on our behalf but she said that judicial review is really a waste of time. Her father has sadly passed away and she is again absent and her senior has advised that judicial review could cost us over £50,000.00. Before legal advice and in view of the fact that we only have six weeks we sent a pre-action protocol letter to the Council on 15 September 2014 advising or our intention to seek judicial review but they have yet to reply apart from telling us how they planned to deal with what they described as a "Complaint" and playing some verbal ping-pong. In that letter we reserved our position to raise other issues if we became aware of them. Our research has now uncovered the fact that the initial planning application did not comply with the legal requirements for an application in the Town and Country Planning (Development Management Procedure)(England) Order 2010 Statutory Instrument 2010 2184 and should not have been validated. More seriously, that as at least two items from the Council's Policy Framework have been contravened in the application the Council's Constitution document does not permit approval under delegated authority in that "The exercise of delegated powers shall be subject to compliance with statutory requirements, Procedure Rules and the Council's policy and budget framework, as set out in the Constitution and in particular as described in the Scheme".
As the Chief Executive of the Council has not replied to the pre-action protocol letter should we now raise the matter with the Council's Head of Legal Services, who is also responsible for the Complaints system, or can we ask to see a Judge to make an ex parte application for the approval to be set aside as it does not comply with the statutes and has not been legally approved. How do we apply to see a Judge in chambers please?
Submitted: 2 years ago.
Category: Law
Expert:  Ash replied 2 years ago.
Alex Watts :

Hello my name is ***** ***** I will help you with this.

Alex Watts :

Sadly you can't get an ex-parte injunction unless there is a risk of serious harm (ie to life) etc.

Alex Watts :

Any application should be on notice even if you abridge service.

Alex Watts :

The general time for an application notice is 3 days but this can be reduced to 24 hours if you give notice and the Council are aware.

Alex Watts :

If you have fired off a pre-action protocol letter and this has not happened then you can seek an interim injunction pending a Judicial Review

Alex Watts :

Really you need a Solicitor to draft the pleadings and present your argument before the Court

Customer:

Hallo Alex,

Alex Watts :

You need to complete form N461

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n461-eng.pdf

Alex Watts :

If you are claiming exceptional urgency then you also need to complete form N461

Alex Watts :

N463

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n463-eng.pdf

Alex Watts :

Here are the notes for completing the form

Alex Watts :

http://hmctsformfinder.justice.gov.uk/courtfinder/forms/n461-notes-eng.pdf

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

Our problem is that we are right up against it on time and my son's solicitor is no longer available and even though we may be able to get some protection under the Aarhus Convention the costs could be enormous. All advice seems to be that the Council will just let the judicial review go through and the correct what they have done wrong and still come up with the same answer. But as I said the validation was not in accordance with the Statutory Instrument and the approval was not lawful as Council officers cannot approve things if it is outside Council policy. The Ombudsman seem to be a waste of space. How much detail is needed just to make application; do we have to provide all documents, chapter and verse?

Alex Watts :

Well you need to provide a concise statement of facts so that a Judge who comes to this cold can understand your case

Alex Watts :

As you have complied with the Review Protocol you can apply now

Alex Watts :

But as you know it must be in the High Court, not just the County Court

Customer:

Is this sufficient plus something about approval not being in accordance with the Council's Constituton or does it need more?

Customer:

The Claimant believes that the Council acted unlawfully in validating the application and supporting documentation which, did not comply with the requirements of SI 2184 and has contravened or not considered the contents of its own policy documents on the validation of planning applications. In addition, in the granting of planning permission, the Council has missed, misapplied or misunderstood the contents of policies issued by the national Government and the policies of the Council itself.

The Claimant also believes that in processing the planning application the Council has acted illogically or irrationally and has not certainly not acted fairly. There are clear indications of bias, not in favour of any individual but towards Government guidance on policy referred to as “the presumption in favour of sustainable development” and of stating to have been “proactive” without giving any indications as to how the Council has been proactive when there are statements to the opposite effect.

As such the granting of planning approval should be declared unlawful and the planning order should be quashed. Claimant further requests that the Council be directed to reconsider the granting of planning permission within the Council’s adopted policies and all other relevant policies and where there is no policy and there is doubt on any issue, any permission granted should be fair and balanced between the interests of the Applicant and the Claimant.

Alex Watts :

Yes but you need to say why it acted unlawfully. What did it do - what did it didn't do

Customer:

High Court of Justice - terrifying for my son and I.

Alex Watts :

Sadly that is the legal process for Judicial Review

Customer:

Let me just go back to my draft letter and I will send you more.

Alex Watts :

Ok

Customer:

This is going to be long Alex:

Alex Watts :

Remember.

Alex Watts :

Concise

Alex Watts :

To the point

Alex Watts :

In brief what has gone on. What they failed to consider, what they should have considered

Alex Watts :

It can't be long - you will lose the Judge

Customer:

Application Documents

The planning application (Pages xxx – xxx) was submitted electronically on 4 July 2014, on behalf of the Applicant, by his agent Robert Ellis, Architectural Services accompanied by supporting documents comprising a map titled: Maps @ Aworth, a 1:500 Block Plan, a Ground Floor Existing Plan 3166/E01, a Side and Rear Elevation drawing 3166/E/02 and a combined Side and Rear Elevation and Ground Floor Plan 3166/01, Pages xxx – xxx, respectively.

The statutes covering the requirements for planning applications are contained in SI (Pages xxxxx – xxxxx). Part 2 Applications, Section 6, Applications for Planning Permission, requires an application to:

6.(1)(a) be made in writing to the local planning authority on a form published by the Secretary of State (or a form to substantially the like effect)

6.(1)(b ) include the particulars specified or referred to in the form

6.(1)(c)(ii) any other plans, drawings and information necessary to describe

the development which is the subject of the application

6.(2) any plans or drawings required to be provided by paragraph (1)(c)(i)

or (ii) shall be drawn to an identified scale and, in the case of plans,

shall show the direction of North

On the first page of their completed application form (Pages xxxx – xxxx) under the heading which requires the First Name of the Applicant the entry on the form is “+ Mrs”. No first name is given.

Section 10 of the statutory form (Page xxxx – xxxx) is headed ‘Materials. If applicable state what materials are to be used externally. Include type, colour and name for each material’

Against the entry for “Roof” the Applicant, or rather the Applicant’s Agent, has entered “TILED/FLAT”. ‘FLAT’ is not a material and this description does not fulfil the requirements contained in the heading of Section 10. There are many methods of flat roof construction but if a development with a flat roof is in any way strive to fulfil the requirements of sustainable development, then full details are surely required.

The application was accompanied by a local map, a block plan, existing ground floor plan and existing side and rear elevations, all as individual drawings (Pages xxxx – xxxx). Also included was a combined drawing showing a ground floor plan, side and rear elevations titled ‘Proposed Single Storey’ beneath which against the date of ‘May 14’ is the signature of the architect and under ‘Scale’ ‘1:100 50’ indicating that the plan is drawn at a scale of 1:50 and the elevations at 1:100.

These documents were supplied online to the Council by the Applicant’s Architect as explained to us by the Town Hall Receptionist/Training officer, as part of the Council’s move to a paperless environment, and were only accessible online using web-based software on the Reigate & Banstead Borough Council’s website. Claimant, despite 20 years’ high-end experience of using advanced motion picture software including including Avid, Final Cut Pro and Adobe Premier Pro and still image editing software including Adobe Photoshop and Illustrator and various proprietary software systems across both Mac OS and Windows systems, found the website both confusing and the available measuring tools enormously inaccurate and of little value.

However, when measured on a full size, A1, printed version of this drawing (Page xxxx are we allowed to fold an A1 sheet in a pocket) which the Claimant received with the Party Wall Application, the width of the building on the elevation is, at the scale of 1:100, 95 millimetres which logically indicates that the width of the ground floor plan at 1:50 should be 190 millimetres (2 x 95). It is however 200 millimetres. This indicates that either one or other of the floor plan or the elevation, or perhaps both, are not to the correct scale.

SI 2184, Article 10(6)(b) (Page xxxx) states than an application is invalid if it is not a valid application within the meaning of Article 29(3) (Page xxxx) which states at sub-section (a) an application which complies with the requirements of article 5 or article 6, as the case may be.

As stated above the application is not correctly completed as required by the Secretary of State and there are discrepancies with the scales on at least one plan and further, two plans do not have the direction of North indicated. Validation of the application was therefore unlawful.

Department of Communities and Local Government (DCLG) publication “Guidance on Information Requirements and Validation” (Pages xxxx – xxxx), dated March 2010 only makes mention in Section 4, Paragraphs 44 – 48 (Pages xxx – xxx) of the Location Plan and Site Plan and only the latter is indicated as needing to accurately show the direction of North.

SI 2184, issued in October 2010, seems to have increased the requirement “in the case of plans” to show the direction of North. This statutory requirement is missing from the Council’s Local Validation List and Guidance, dated August 2013 (Pages xxx –xxx) which shows only the previous requirement from the DCLG document (Page xxx) of indicating North on the site/block plan (Page xxx).

The Council’s Local Validation List of National Requirements (Page xxxx) does include the additional option from the DCLG publication of including roof plans: “for any roof that would be created or altered by the proposed development, showing the shape of the roof, its location, and specifying the roofing materials to be used.” However no roof plans were included with the application documents other than the views shown on the small rear and side elevations (Page xxxx).

In a list of common reasons why applications are invalid (Page xxxx) the Council’s Local Validation List gives, as two of the most common reasons why applications are not valid when received, the following:



  • “Supporting documents that omit information specified in the guidance notes accompanying the planning application form and/or set out in national guidance, the statutory development plan or supplementary development plan”

  • “Submitted drawings did not show sufficient details as specified in the guidance notes, were not drawn to scale or dimensioned, were inconsistent with one another”

Alex Watts :

OK - that is ok

Customer:

Am I given any latitude as a litigant in person. The period of six weeks allowed for this is grossly unfair and my MP is the Justice Secretary. I think he believes his title to be the "Just Is Secretary"

Customer:

Lose the Judge! Imagine how difficult this has been for us starting from scratch on 4 September!

Alex Watts :

Indeed. You are given very slight latitude but not much. You are expected to comply with the law and legal requirements

Customer:

Council haven't! Am I still allowed to contact the Council's Head of Legal if we are in pre-action protocol to say the claim was unlawfully validated and unlawfully approved and everything in between was pretty much the same.

Customer:

What are the implications if we decide that we are not going to get anywhere, that the legal system is indeed the preserve of the wealthy, and wish to abandon everything.

Customer:

Sorry, not claim, planning application.

Alex Watts :

Yes you can still contact Legal Services.

Alex Watts :

If you start and drop the claim the usual rule is you are liable for the other sides costs

Customer:

And that is the problem. Designed to scare us off.

Alex Watts :

But sadly those are the Court rules. Imagine it was the other way round and someone brought a claim against you and decided to drop it. would be it fair you wouldnt get your legal fees back?

Customer:

If the application was unlawfully approved can that not be raised with someone else outside the six weeks.

Alex Watts :

If you win the JR then you can ask for costs.

Alex Watts :

Apart from the Ombudsman all you can consider is Judicial Review

Customer:

So heads we lose and tails we lose?

Alex Watts :

No, if you win then you get an injunction they have to reconsider the position and you get your costs back

Alex Watts :

But if you lose, it goes ahead and you have to pay the Council's legal costs

Customer:

And if we make one mistake it all gets thown out and we pay the bills.

Alex Watts :

Yes but if there is a procedural defect the Judge has the power to allow you to amend

Alex Watts :

Can I clarify anything for you about this today please?

Customer:

No, that is fine Alex. You have been more helpful that the solicitor so I will give you a big smile.

Customer:

Have a good day.

Alex Watts :

Thank you.

Alex Watts :

Can I help with anything else today?

Customer:

No thank you. I just hope I can now save all of the above and print it off.

Alex Watts :

Once you rate the answer the format changes so you can print it off

Alex Watts :

If this does answer your question might I invite you to rate my service, the button should be at the bottom of the screen

Alex Watts :

If you need more help please click reply

Ash, Solicitor
Category: Law
Satisfied Customers: 10915
Experience: Solicitor with 5+ years experience
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