ࡱ> ` Ɩbjbjss .  000Dl3l3l38304LD(`44444444_______$`hFc`_0C44CC_0044_HHHC0404_HC_HHo\00]4|4 nl3E\__0(`]cFG`c(]c0]4t8.H*<>444__HX444(`CCCCDDDdDDDDDD000000 IN THE HIGH COURT OF JUSTICE QUEENS BENCH DIVISION ADMINISTRATIVE COURT BETWEEN : The Queen on the Application of 1. SUZANNE COUVES 2 JONATHAN CLAY 3. URBAN GRAVESHAM ( THE CIVIC SOCIETY FOR GRAVESEND AND NORTHFLEET) Claimants -and- GRAVESHAM BOROUGH COUNCIL Defendant 1. MR EAMON CURRAN 2. MR OWEN OSULLIVAN Interested Parties STATEMENT OF FACTS AND GROUNDS IN SUPPORT OF AN APPLICATION FOR JUDICIAL REVIEW The Claim By this Claim the Claimants seek to challenge the Defendants decision dated 15 August 2007 to grant planning permission for the Conversion of property into 12 self contained flats involving alterations and erection of a three story rear extension; laying out of 12 car parking spaces at the rear; erection of new 1.2 metre high front boundary wall and construction of new vehicular and pedestrian access in respect of a house and gardens called Bedford , 76, Darnley Road, Gravesend, Kent. The Claimants in this action are as following: Suzanne Couves is a resident of 78 Darnley Road, Gravesend DA11 OSE Kent. Jonathan Clay is a resident of Gravesend living at 1, Constitution Crescent, Gravesend, DA12 1 JS. Mr Clay is by profession a planning barrister, but his involvement in this matter is as a local resident and as the Chair of Urban Gravesham, an unincorporated association and the Civic Society for Gravesend and Northfleet. Suzanne Couves is also a member of Urban Gravesham. The Defendant is the Local Planning Authority within the meaning of section 1 of the Town and Country Planning Act 1990, for the district which includes the town of Gravesend, Kent. The Interested Parties are the registered freehold owners of the property whose address is 38 Shearway Business Park Shearway Road Folkestone CT19 4RH. The second Interested Party was the applicant for planning permission for the redevelopment of a large house and grounds called Bedford in Darnley Road, Gravesend, Kent. The House is included on the Councils list of buildings of historic and architectural interest and stands within the Darnley Road Conservation Area which has been so designated on 1 February 1990, as an area of architectural and historic interest pursuant to section 69 of the Planning (Listed Buildings and Conservation Area) Act 1990. Such is the importance of the building that it is the subject of planning guidance relating specifically to the site, published by the Council in 2001 called Planning and Design Guidance Note Bedford, 76 Darnley Road, Gravesend [bundle pages 5 - 12]. The Guidance Note states at paragraph 1.1 that it has been prepared in order to advise prospective purchasers of the broad planning policies and design and conservation issues relating to the site. Policy TC3 of the Local Plan Review is set out in the Guidance Note, that states: The Borough Council will adopt the following approach to application for development within or affecting conservation areas: (i) Where development is acceptable in relation to other policies of this Plan, it will be carefully judged for its impact and will be expected to make a positive contribution to the conservation area.. Section 2 of the Guidance Note sets out the Historical Background and planning history of the building describing the extent of historical detail and interest that survives in the building. Paragraph 3.1.3 of that document states that any alterations which adversely affect its character and appearance will be strongly resisted. Paragraph 3.1.9 states that backland development of the site will be resisted. Paragraph 3.1.14 of the Guidance Note states: because of its relatively unaltered interior and the need to comply with the requirements of the building regulations in respect of fire and sound insulation, much of the historical interest of the building could be destroyed. A vertical conversion to form two dwellings may, however, be feasible and would be less damaging to the historic fabric than conversion to flats or bedsits which would be resisted.[emphasis added] Permission was granted by decision letter dated 15 August 2007, having been considered by the Councils Regulatory Board on 18.4 2007, where the Board resolved to refuse permission, on 30.5.07and again on 20.6.07. A Members site visit took place on the evening of 6 June 2007. Further amendments were submitted on 18 July 2007 and although the public were not consulted over these amendments, finally, on 25.7.07, Members considered the matter again. At that meeting the Board had a short report from the Director (Regeneration and Regulation) which did little more than record the chronology of meetings and the most recent revisions to the application. The report was accompanied by a number of supplementary documents: a statement setting out retained features; a table of gross internal floor areas; a location plan; and comments from the conservation officer. The Board resolved to delegate the decision to the Director (Regeneration and Regulation) for conditional permission to be granted. The Notification of Grant of Permission to Develop Land at The Bedford, 76 Darnley Road, Gravesend DA11 0SQ is dated 15 August 2007. By that Notice, the Defendant granted planning permission for the Conversion of property into 12 self contained flats involving alterations and erection of a three story rear extension; laying out of 12 car parking spaces at the rear; erection of new 1.2 metre high front boundary wall and construction of new vehicular and pedestrian access. The permission is subject to 9 conditions, which included several conditions precedent, and a condition which states: 9 No development shall take place until such time as a scheme or mechanism, whether by means of an obligation under section 106 of the Town and Country Planning Act 1990, or otherwise, has been submitted to and approved, in writing, by the district Planning Authority to provide for community facilities. Mr Clay has been told by Mr Clive Gilbert, the Councils Development Control Manager, in a telephone conversation which took place on 3 October 2007, that that the condition is for the purpose of obtaining financial contributions to public services.[see witness statement of Jonathan Clay paragraph 4] The Notice states two reasons for grant of permission as follows: 1. Having regard to all material planning considerations, permission has been granted because, subject to compliance with the planning conditions, the development would not materially harm any interest of acknowledged importance. 2. The decision has been taken having regard to the policies and proposals of the development plan, principally: Gravesham Local Plan (First Review) 1994 TC1 design of new developments TC3 Development affecting conservation areas H1 Housing Areas H2 Residential Layout Guidelines Notwithstanding the planning permission being granted subject to several conditions precedent, the developer has proceeded with works, including the partial demolition of a coach house on the site and the felling of trees without those conditions having been satisfied. [see witness statement of Jonathan Clay paragraph 3] an event that contradicts the statement submitted on behalf of the applicant in July setting out features to be retained, which at paragraph 5 stated that the existing coach house is to be repaired made structurally sound with out any visible signs changes (sic) The Claimants seek an order that the planning permission be quashed and a declaration that Condition 9 attached to the permission is an unlawful condition in that (a) it is bad for uncertainty, in that it is not clear what it requires; and (b) is unlawful as it is being used as a means to require the developer to pay sums of money in contributions to the planning authority of Kent County Council. It is the Claimants case that the condition is not severable from the permission as a whole, and accordingly the permission itself is unlawful. The principal grounds for this application are : Failure to consult the public. Despite elections taking place between the original consultation and the decision of 25 July 2007, the objectors letters in response to the January consultation were never reported to the Regulatory Board meeting which resolved to grant permission. The Council failed to re-consult the public following further substantial amendments to the application in May and July of 2007. The reasons for the permission are inadequate and do not enable any interested person, whether applicant or objector, to see whether there might be grounds to challenge the decision.. Specifically it is not possible to understand whether the Council had regard to their duty under section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990 to have special regard to the desirability of preserving or enhancing the character and appearance of the conservation area, and what conclusions they reached in respect of that duty and, notwithstanding the harm to the character and appearance of the conservation area, whether there were reasons for granting planning permission.. The permission is subject to an unlawful condition (9) which is not severable from the permission. The Council failed to have regard to their own Planning and Design Guidance Note for the site, or to consider that the development was contrary to their own Guidance Note or to provide reasons why the development should be permitted contrary to the Councils own published guidance. The Council failed to determine the development in accordance with the development plan policy in Local Plan First Review Policy TC3 and failed to have regard to material considerations, in particular the duty under section 72 of the Listed Buildings and Conservation Areas Act 1990. The development was clearly such as to fail to preserve or enhance the character and appearance of the conservation area and the locally listed building, but the committee report to the meeting of 25 July 2007, following the further amendment of the scheme on 18 July 2007 fail to identify any reasons which would justify approving the development despite its failure to meet the statutory test in section 72 of the Planning (Listed Buildings and Conservation Area ) Act 1990 or Policy TC3 of the Gravesham Local Plan Review 1994. Ground 1. Failure to consult, or report the result of consultations to the deciding committee. Despite elections taking place between the original consultation and the decision of 25 July 2007, the objectors letters in response to the January consultation were never reported to the Regulatory Board which resolved to grant permission. The Council failed to re-consult the public following further substantial amendments to the application in May and July of 2007 or to consider representations made by members of the public at the Regulatory Board meeting which resolved to grant permission. The report to the Board meeting of 18 April 2007 noted that there had been 20 letters of objection. The nature of those objections is not mentioned in the report. It is not therefore clear how (if at all) the Board was apprised of the substance of third party objections to the proposed development. It is not clear why the Boards resolution of 18 April 2007 was not carried through to the issue of a Notice of Refusal. However, no such Notice was issued and instead the applicant then made several amendments to the scheme which were then considered by the Regulatory Board. None of these amendments were the subject of further public consultation. Between the initial consultation in April and the decision on 25 July the entire Council membership was subject to election, such that the Membership of the Council and the Regulatory Board changed. Despite this, the responses of the Public to consultation were never reported to the Board which made the decision which led to the grant of permission. Further reports and the Conservation Officers comments at a site visit of members which took place in June have been obtained and they confirm her consistent view that the proposals were unacceptable. The second report to Regulatory Board dated 30.5.07 appears to follow certain amendments which were made to the proposals which are listed in section 5 of the report. It contains little analysis of the merits of the scheme, instead concentrating on resource implications and the risk of a costs award against the council in the event of refusal. It contains no assessment by the Conservation Officer. Section 5 of the report simply lists a number of amendments and then concludes only the revised proposals now represent a good outcome for Bedford House. This sentence represents the entire officer assessment of the merits of the scheme in the second report. At the meeting on 30 May 2007, the Members resolved to defer the decision to carry out a site visit. This took place on 6 June 2007 and was reported to the subsequent meeting on 20 June 2007, where Members again deferred the decision for negotiations. The note of the meeting made contemporaneously by Mr Bob Couves [SC1 page 104 & 105 ] indicates that Members resolved that further neighbour consultation should take place over any amendments [see witness statement of Suzanne Couves paragraph 9] Amended proposals were submitted on 18 July, but were reported to the meeting of the Regulatory Board on 25 July without ever being the subject of consultation. The revised proposals were described in the report to the Board in 25 July 2007. The report states that it is considered that the revisions meet the concerns identified by the Board, and it is recommended that permission is granted. However, the Conservation Officers comments on the revised proposal, dated 17 July 2007, which were produced at the meeting as a supplementary report, show that she was still not satisfied. Even if the developers proposed amendments were sufficiently significant to overcome the strong objection of the Conservation Officer, it is very surprising that they were accepted as minor amendments by the Council (rather than requiring a new application) and they should have been the subject, at the very least, of further public consultation. The importance of proper public consultation in the planning process has been noted by the courts at the highest level. Between the date of the original consultations and the report to committee in April 2007, and the amendments and reconsideration in July 2007, the entire Council was subject to election in 3 May 2007. The third paragraph of Mr Harts letter of 29 August [B48-9] says that the objections raised by neighbours were dealt with in previous reports. It appears that not only were residents not consulted over the amendments but contrary to Mr Wards assertion, their comments were not reported to any Meeting of the Regulatory Board after 3 May 2007, (when the membership of the Board and the political control of the Council changed) including the meeting which took the decision to grant planning permission on 25 July 2007. Ground 2. Failure to give adequate reasons The requirement to give reasons has been the subject of a number of judicial decisions, most recently in the decisions of Collins J. in R. (on the application of Midcounties Co-operative Ltd) Forest of Dean DC [2007] EWHC 1714 (Admin), who said at paragraph 28 of his judgement: The purpose of giving reasons is the same whether they be full or summary and are needed to enable any interested person, whether applicant or objector, to see whether there might be grounds to challenge the decision.See also R (Tratt) v Horsham District Council [2007] EWHC 1485 (Admin). It is readily apparent that the basis for the Councils decision in respect of the principal issues, particularly the question of whether the development would cause harm to the character and appearance of the conservation area is not apparent from the Notice. Although the decision lists a number of policies from the local plan of 1994, it does not state whether the development was consistent with those policies. This is a fundamental requirement of any permission, by reason of section 38(6) of the Planning and Compulsory Purchase Act 2004. Further, as the development proposed is within a conservation area, there is a statutory duty pursuant to section 72 of the Planning (Listed Buildings and Conservation Areas) Act 1990, in determining the application, to pay special attention to the desirability of preserving or enhancing the character and appearance of the conservation area. Again, the Notice gives no clue as to what was the Councils conclusion in respect of that issue and in performing that duty. There is no reference to the duty at all in the decision, although it was, it appears from the committee report, the principal concern of both residents and the Councils own conservation officer. Ground 3. The permission is subject to an unlawful condition (9) which is not severable from the permission. The planning permission is subject to Condition 9 which states: 9 No development shall take place until such time as a scheme or mechanism, whether my means of an obligation under section 106 of the Town and Country Planning Act 1990, or otherwise, has been submitted to and approved, in writing, by the district Planning Authority to provide for community facilities. The reason given for the condition states: In order to ensure that provision of community facilities for the occupants of the proposed dwellings is adequate. Mr Gilbert has confirmed to Mr Clay that the purpose of the condition is to secure payment of financial contributions to the County Council. [See witness statement of Jonathan Clay paragraphs 3 and 4]. This appears to be confirmed in correspondence between James Clarke of Mouchel Parkman (as agents for Kent County Council) and the Defendants Planning Director dated 2 January 2007. [SC1 page 57 and 58 ] Circular 11/95 states at paragraph 31: A condition which is not sufficiently precise for the applicants to be able to ascertain what must be done to comply with it is ultra vires and cannot be imposed. [See also Encyclopedia of Planning Law Vol 2, P72.17] This condition gives no indication of what is required to satisfy it. Paragraph 13 of Circular 11/95 states that Permission cannot be granted subject to a condition that the applicant enters into a planning obligation under section 106 of the Act or an agreement under other powers. The condition is plainly contrary to the provisions of the Circular. Further, a planning condition cannot lawfully require that a payment of money or other consideration is made. [see Planning Encyclopedia Vol 2 paragraph 72.14]. The condition is an important one, and is not severable from the permission. As the condition is unlawful, so is the permission. Ground 4 The Council failed to have regard to their own Planning and Design Guidance Note for the site, or to consider that the development was contrary to their own Guidance Note or to provide reasons why the development should be permitted contrary to the Councils own published guidance. The reports to the Board fail to have regard to a material consideration, the Planning and Design Guidance Note relating specifically to the site, published by the Council in 2001. [Bundle pages 5-12] The Guidance Note is a document of some several pages, which provides a detailed analysis of the relevant Development Plan policies and also provides specific and cogent advice to prospective developers as to the approach which will be taken to any proposals for development of the site. It is plainly a material consideration of some importance in the determination of any application for permission to develop the site. The Planning and Design Guidance Note is available to the public, and was expressly referred to in many of the letters of objection in response to consultation in January 2007. [SC1 pages61, 64,67, 70,83,85, 87,] Paragraph 3.1.3 of that document states that any alterations which adversely affect its character and appearance will be strongly resisted. Part of the proposed conversion scheme is a three storey extension, which the conservation officer has consistently criticised. Paragraph 3.1.9 states that backland development of the site will be resisted. The proposals are plainly backland development and are described as such in the committee reports. As noted above, paragraph 3.1.14 of the Guidance Note states that conversion to flats or bedsits will be resisted. The developer is directly in conflict with that advice. The Claimants have a legitimate expectation that in determining any application for planning permission the Council would have regard to the Guidance Note and to determine applications for planning permission in accordance with it, unless there existed some material consideration which would indicate otherwise. The Guidance Note is not even mentioned in any of the Committee reports. Nor is it mentioned in the Decision Notice. The fourth paragraph of Mr Harts letter of 29 August 2007 on behalf of the Director of Regeneration and Regulation states: The planning guidance notes you refer to are only guidance and with developments effecting a building at such high risk from the elements and vandals compromise with the developer is necessary to a certain degree to insure that the site does not fall foul to the above issues. It is plain that, notwithstanding the Councils statutory powers to take action to protect buildings and sites in conservation areas, the officer considered that a factor in granting the application was that the developer was neglecting the building. Such an approach, if taken into account in determining applications, actually rewards deliberate neglect of the historic fabric of the Borough by developers. Ground 5: The Council failed to determine the development in accordance with the development plan policy in Local Plan First Review Policy TC3 and failed to have regard to material considerations, in particular the duty under section 72 of the Listed Buildings and Conservation Areas Act 1990. Gravesham Local Plan First Review Policy TC3 states: The Borough Council will adopt the following approach to applications for development within or affecting conservation areas:- Where development is acceptable in relation to other policies in this Plan, it will be carefully judged for its impact and will be expected to make a positive contribution to the conservation area. The Borough will expect applications to contain sufficient details to enable the impact on the conservation area to be assessed. The demolition of unlisted buildings will be resisted unless the Council is satisfied that the existing building is harmful to the conservation area and that proposals for redevelopment or other use of the site will be beneficial. The Council has a statutory duty under section 72 of the Planning Listed Buildings and Conservation Areas Act 1990, to have special regard to the desirability of preserving or enhancing the character and appearance of the conservation area in exercising any of its planning functions. The letter from Mr Hart of 29 August 2007 [KD1 page 47-49] states that the conservation officer is only a consultee[and] has been active throughout the process and has been pleased with the overall scheme for the Bedford. There is nothing in either of the reports to support this view; indeed it is apparent from the Conservation Officers comments that she was far from pleased with the scheme. On page 49 of the report of 18.4.07 she states I therefore consider that the proposal would be harmful to and would fail to preserve or enhance the character and appearance of the Darnley Road Conservation Area and a strong objection must therefore be raised. Despite this advice, the reports then recommended delegating approval to the Director. It appears that Members did not follow this recommendation and it was resolved to be refused at the first meeting on 18 April 2007.The Board reports which formed the basis for the determination do not provide any clear arguments to support the grant of planning permission. The Councils Conservation Officer consistently advised that the development would cause harm to the character and appearance of the Conservation Area and the locally listed building as follows: CONSERVATION COMMENTS GR20061032 Conversion of property into 12 two bedroom self contained flats involving alterations and erection of a three storey rear extension; laying out of 12 car parking spaces at the rear; erection of new 1.2m high front boundary wall and construction of new vehicular and pedestrian accesses Bedford, 76 Darnley Road, Gravesend This building dates from around 1884 and was built as a five bedroom house with servants quarters by a London stockbroker and local businessman William Russell. It was bought in about 1922 by Dr Hartley who altered and extended it to accommodate his surgery and household needs. Although a request to the Department for Culture, Media and Sport for statutory listing was turned down, mainly because the building was not designed by an architect, it has been added to the local list of buildings of architectural or historic interest, which, although giving no statutory protection, identifies buildings and structures that make a positive contribution to the architectural and historic heritage of the Borough and which are therefore worthy of protection. Changes of ownership whilst the building has been empty, combined with vandalism and lack of maintenance, have led to its deterioration both internally and externally. The Councils concern about the condition of the building resulted in the serving of an amenity notice under S215 of the Town and Country Planning Act on the previous owner. I raised a strong objection to the proposal as originally submitted on the grounds that it was over-intensive, the extension was not sufficiently subservient in scale to the main building and the changes to the main building were also unsympathetic. An amended scheme has now been submitted. Although the height of the proposed extension has been reduced, the large flat-roofed dormer at the rear of the main building has been replaced with more appropriate traditional pitched roof dormers and the coach house is to be retained as a gateway through to the parking spaces at the rear, I am still concerned about the scale of the extension and the inappropriateness of the proposed changes to the main building. Significant changes are, for instance proposed in order to create living accommodation in the basement where none exists at present. Further details of the proposed new light wells and the new doors/windows to the basement rooms, demonstrates the unsympathetic nature of the proposals. The new door/window openings are poorly related to the structure above, in particular the canted bays, and will, even though they are below ground level, unbalance the front elevation of the building, in my view. I still await receipt of a complete front elevation as proposed. Needless to say, with a conversion of this intensity, there has been little thought to retaining the original layout and internal features of the building. The proposal will also introduce car parking for 12 cars at the rear of the site, which will, in itself, have an adverse impact on the character and appearance of the conservation area. Although the applicants design statement refers to two developments permitted elsewhere, at Nos. 90 and 74 Darnley Road, the former was a residential home for the elderly converted from a doctors surgery and with two road frontages (the extension was, in any case lower than the main building) and the latter is not in the conservation area at all and was on the site of a former church. Again, it has two road frontages and the site was of a completely different character to the one occupied by Bedford. It has always been the approach of this planning authority that buildings should be capable of conversion without significant extension, unless there is a strong justification for this. This is particularly important in the case of historic buildings and areas. I therefore consider that the proposal would be harmful to and would fail to preserve or enhance the character and appearance of the Darnley Road Conservation Area and a strong objection must therefore be raised. Jenny Brooker (Conservation Planner) 4.5.07 Following amendments to the scheme made on 18 July 2007, she commented: CONSERVATION COMMENTS GR20061032 Bedford House, 76 Darnley Road (Amended scheme July 2007) The proposed ground floor layout is better in that it divides the existing large sitting room into two spaces, with fireplaces retained. My concerns still remain about the intensity of the proposed use, which involves a substantial extension at the rear, a further rear extension to the main house and the formation of substantial lightwells at the front of the building. It also involves the insertion of a significant number of roof windows. These windows are not acceptable. They should be traditional metal conservation windows with a central vertical glazing bar, which are smaller than those shown. The success of the scheme in terms of preservation and enhancement of the conservation area will depend to a great extent upon attention to detail. An appropriate landscaping scheme that retains and reinforces existing tree cover and other planting is also essential. Confirmation that the appearance of the existing coach house will remain unaltered, particularly with respect to the retention of traditional solid doors, is also required. The front elevation should be amended to show the proposed lightwells in their amended form, together with associated railings and plinths. The latter could be significantly reduced in height. This would provide more light to the basement rooms and would also appear less obtrusive. It is important that the external walls and roof surfaces, particularly those open to public view are not peppered with vents, pipes etc. Presumably adequate safeguarding conditions will be attached to any permission that will control this, together with the requirement to seek approval for all external materials, and to include joinery and dormer details (unless these are to match originals). Jenny Brooker (Conservation Planner) 17.7.07 There is simply no explanation or justification given in the reports as to why the development should be permitted. Moreover, despite the statutory duty under the Listed Buildings & Conservation Areas Act, the second, third and fourth reports to the Board contain no assessment of the effect of the development on the character and appearance of the Conservation Area, nor do the reasons for granting the permission make any reference to the duty to have regard to, or the effect on the character and appearance of the conservation Area. There is an absolute failure to determine the application in accordance with the statutory duty in the Planning Listed Buildings & CA Act. Taken as a whole, the reports exhibit fundamental failures. Despite the strong reasons for refusal, set out by the conservation officer, the reports have consistently sought to recommend that permission should be granted, without giving any explanation as to why planning permission should be granted for development which was harmful to the building and the character and appearance of the Conservation Area. On one occasion (the May meeting) the report was mainly devoted to telling Members about lack of resources, and the risk of costs, and contained no assessment of the merits of the proposal. There is no reference to site specific Guidance Notes adopted by the Council, and no reference to the statutory duty under section 72 of the Listed Buildings and Conservation Areas Act 1990. Three of the four reports make no mention of the effect on the character and appearance of the Conservation Area. It appears that the decision to grant permission does not accord with section 38(6) of the Planning and Compulsory Purchase Act 2004, and is Wednesbury unreasonable in failing to have regard to relevant considerations and having regard to irrelevant considerations. The determination was made in breach of the statutory duty under the LB&CA Act 1990. There is an abject failure to have regard to material considerations, as required by section 38(6). Expedition By letter of 6 September 2007 Jonathan Clay on behalf of Urban Gravesham wrote to Chief Executive of the Council, Mr Wintour raising concerns that the Council had made an unlawful decision and requesting that the permission should not be issued. At that time, it was not known that the permission had already been issued. In that letter, Mr Clay, sought urgent confirmation that the permission would not be issued until the matter was taken back to committee, with a report which draws attention to the Councils own guidance and assesses the scheme against that guidance, as well as providing an accurate statement of the Conservation Officers assessment of the effect of the development on the locally listed building and the character and appearance of the Conservation Area. A letter from Richard Hart of Planning and Regeneration Services was sent to Kulbinder Dio signed by the Director of Planning and Regeneration dated 29 August 2007 [Bundle pages 48-49]. The letter states that third parties have no rights in planning law and therefore cannot request a judicial review. This is plainly wrong. The Council has now confirmed in correspondence with Kulbinder Dio that they were mistaken and that there is indeed a right to challenge the permission through the Courts. At a meeting of Urban Graveshams Committee on 13 September 2007, it was unanimously resolved that an application should be made for permission for judicial review and to seek to have the decision quashed, unless the Council was prepared to agree to have the permission quashed. Accordingly, by letter dated 13 September 2007, [Bundle pages 53-54] Jonathan Clay wrote again to the Chief Executive of the Council, Mr Wintour, putting the Council on Notice of the Claimants intention to seek judicial review of the permission. Mr Clay also wrote to the Developers agent, Mr OSullivan, c/o Messrs Ward, at Meopham, Kent. as Interested Party and enclosed a copy of letters of 6 and 13 September 2007. The Interested Party has not replied. Instead, work has commenced on site including the felling of trees and the total demolition of the coach house which stands in the grounds of the House, (as stated by Mrs Suzanne Couves in her witness statement) which would appear to be an offence under sections 7-9 of the Listed Buildings and Conservation Areas Act 1990. The Claimants have sought confirmation from the Council that they will not discharge the conditions until the judicial review has been heard. Accordingly, the Claimants seek an expedited decision to grant permission for judicial review and thereafter if necessary, an expedited hearing. STANTONS  See per Collins J in R (on the application of Midcounties Co-operative Ltd) Forest of Dean DC [2007] EWHC 1714 (Admin) at para 28.  See judgment in the case of Bernard Wheatcroft Ltd v- SSE [1982] JPL 37. The judge in that case was asked to consider whether it was permissible to grant planning permission for a significantly smaller development than had originally been applied for, by the imposition of conditions. The learned judge concluded that the appropriate test to be applied was whether "the effect of the conditional planning permission [is] to allow development that is in substance not that which was applied for." According to the learned judge in Wheatcroft, the question of what is "substantially different" is a matter of judgment for the decision maker (the LPA or the Secretary of State). He went on to state that "The main, but not the only, criterion on which that judgment should be exercised is whether the development is so changed that to grant it would be to deprive those who should have been consulted on the changed development of the opportunity of such consultation "[emphasis added] The principle set out in Wheatcroft was approved in the more recent case of British Telecommunications plv v- Gloucester City Council [2001] EWHC Admin 1001.     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