Planning permission subject to time-limit — Whether development begun within five years — Works carried out to remove part of hedge and provide entrance to site — Whether a ‘specified operation’ — Whether inspector applied correct test
In 1960 outline
planning permission was granted to the appellant’s mother to build a house on
land at Gray’s Lane, Ibstone, Buckinghamshire. Approval of detailed drawings
was not sought until 1972. In November 1973 a fresh permission was granted
based on the 1972 drawings, subject to a condition that the development should
be begun within five years. The application for that permission indicated that
the proposal involved the construction of a new highway access. In February
1974 some 12 ft of boundary hedge was removed by a JCB excavator to provide an
opening, though not at the precise point shown by the detailed plan, and an
amount of surface earth was removed in preparation for a driveway. The
appellant’s mother then fell ill and no further work was done. In 1984 the
mother died and the land was inherited by her three children, including the
appellant. In 1987 the appellant applied to the second respondents, Wycombe
District Council, for permission to build the house according to the 1973
design. The application was refused and an appeal against the refusal was
dismissed.
In 1988 a
further application was submitted with an amended plan but this was also
refused. At the inquiry into an appeal against this refusal the appellant
contended that the work carried out in 1974 was a ‘specified operation’ under
section 43(2)(d) of the Town and Country Planning Act 1971 (section
56(4)(d) of the Town and Country Planning Act 1990) so that the 1973
permission had not lapsed. The inspector dismissed the appeal, holding that no
special circumstances existed to override the policy objections to the
proposal. He had regard to the planning history, but in relation to the work
done in 1974 he concluded that development as defined in section 43(2)(d)
had not been carried out. The appellant applied to the High Court to quash the
inspector’s decision, submitting that this conclusion was erroneous and that
had the inspector been of the view that the 1973 permission was still valid he
might well have come to a different decision. On October 12 1990 Sir Graham
Eyre QC (sitting as a deputy High Court judge) dismissed the application. The
appellant appealed.
appeal was allowed.
The inspector
had directed himself to the wrong question. In deciding whether a specified
operation had been carried out the degree or extent of the work was not
relevant, save on a de minimis basis. The proper question to ask was
whether, however little it was or however great it was, it was referable to the
1973 permission: see pp 110B-111C. Malvern Hills District Council v Secretary
of State for the Environment (1982) 46 P&CR 58 applied. Had the
inspector asked himself the right question he must have concluded, on the facts
that he found, that a specified operation within section 43(1) had been carried
out: see p 111C-E.
Decision of
Sir Graham Eyre QC reversed.
to in the judgment of Purchas LJ
Malvern
Hills District Council v Secretary of State for
the Environment (1982) 81 LGR 13; 46 P&CR 58; [1982] EGD 1217; 263 EG
1190; [1982] JPL 439, CA
Parkes v Secretary of State for the Environment [1978] 1 WLR 1308;
[1979] 1 All ER 211; (1978) 77 LGR 39; 36 P&CR 387; [1978] EGD 973; 248 EG
595, [1978] 2 EGLR 143; [1979] JPL 33, CA
Appeal against
decision of Sir Graham Eyre QC
This was an
appeal against a decision of Sir Graham Eyre QC (sitting as a deputy judge of
the Queen’s Bench Division) on October 12 1990 whereby he had dismissed an
application by the appellant, Pamela Patricia Thayer, under section 245 of the
Town and Country Planning Act 1971 (section 288 of the Town and Country
Planning Act 1990) to quash a decision by Anthony Wharton, an inspector
appointed by the first respondent, the Secretary of State for the Environment,
who had dismissed an appeal against the decision of the second respondents,
Wycombe District Council, refusing outline planning permission to build one
house on land at Gray’s Lane, Ibstone, Buckinghamshire.
Carnwath QC and Jonathan Karas (instructed by Bates Wells & Braithwaite)
appeared for the appellant, Pamela Patricia Thayer.
(instructed by the Treasury Solicitor) appeared for the first respondent, the
Secretary of State for the Environment.
respondents, Wycombe District Council, did not appear and were not represented.
following judgments were delivered.
PURCHAS LJ: This is an appeal by Pamela Patricia Thayer from the dismissal by
Sir Graham Eyre QC, sitting as a deputy judge of the Queen’s Bench Division, on
October 12 1990, of a motion brought by her under section 245 of the Town and
Country Planning Act 1971 (‘the 1971 Act’) seeking an order quashing a decision
of one Anthony J Wharton, an inspector appointed by the Secretary of State for
the Environment. The decision was announced in a letter dated April 25 1990 and
dismissed an appeal by Pamela Thayer against the decision of the Wycombe
District Council (‘the council’) refusing outline planning permission to build
one house on rough unused land at Gray’s Lane, Ibstone, Buckinghamshire (‘the
appeal site’).
The appeal
raises a short but important point relating to ‘specified operation’ as defined
in section 43(2) of the 1971 Act (section 56(4) of the Town and Country
Planning Act 1990).
The land
comprising the appeal site was bought by the appellant’s mother in 1959. It had
always been the intention of the appellant’s mother to build a family dwelling
on the site. Outline planning permission to erect one house was granted in
1960. For reasons not disclosed and apparently not relevant to this appeal the
mother did not pursue the outline planning permission immediately after it was
granted. It was not until 1972 that detailed drawings were submitted pursuant
to the original outline planning permission; but again these were not
considered. Instead, in 1973 there was a renewed application for planning
permission dated October 24 1973 which referred to the ‘block plan’ submitted
with the earlier 1972 application (reference WR/793/72) and to the outline
planning permission which had been granted in 1960 (reference WR/51/60). The
only other relevant matter contained in the application form was the answer to
the question ‘Does the proposed development involve the construction of a new,
or the alteration of an existing, access to or from the highway?’ to which the
answer is ‘Yes — combined vehicular and pedestrian access’.
Permission was
granted by Buckinghamshire County Council on November 23 1973, the relevant
parts of which are as follows:
. . . hereby
permit the erection of house and garage at Gray’s Lane, Ibstone, Bucks, in
accordance with your application dated 24th October, 1973, and the plans and
particulars accompanying it subject to the following conditions
(1) The development to which this permission
relates must be begun not later than the expiration of five years beginning
with today’s date.
(2) This permission shall relate to the detailed
drawings attached to planning approval ref: WR/793/72 submitted following a
grant of outline permission by the Minister under ref: WR/51/60.
The reasons for
imposing the above conditions are
(1) To prevent the accumulation of planning
permissions to enable the Council to review the suitability of the development
in the light of altered circumstances and to comply with the provisions of
section 41(1) of the Town and Country Planning Act 1971.
(2) For the avoidance of doubt as to that which
is being permitted.
Proofs of
evidence from the appellant, her sister, Rosemary Kathleen Thayer, and her
brother, Richard John Martin Thayer, which were put before the inspector for
the purposes of his inquiry, established that on the receipt of the permission
the appellant’s mother was ‘very pleased indeed; she had made up her mind to
get on with it’ (the proof of evidence of Rosemary Thayer). During the period
between the application and the granting of the permission there is evidence
from Rosemary Thayer that she had had a meeting with a planning officer from
the planning authority at the site in April 1972. The purpose of the meeting
was that the officer wished to look specifically at the siting of the entrance
to the site:
He had
considered that the entrance might be better placed at the extreme northeast
corner of the site, but after seeing the site he decided it should be in
position shown on the detailed plan which had been submitted. The access was
approved with the details of the plan on 24th April, 1972, and we had the
excavation done where the entrance was shown on the plan.
The permission
having been granted in November 1973, the work with which this appeal is concerned
was put in hand in February 1974. In accordance with his mother’s wishes
Richard Thayer, the appellant’s brother, arranged for a Mr David Wheeler to
bring his ‘JCB’ excavator to Gray’s Lane to excavate an entrance and start a
driveway at the appeal site. There is no doubt that Mr Wheeler did attend at
the site and presumably with his excavator removed some 12 ft approximately of
the hedge. This was not at the precise point shown by the detailed plan, but at
a point removed some 10 ft from it and did not extend the whole of the 24 ft
provided for in the plan. The opening which was made, however, was sufficient
to allow the excavator on to the site, where, in fact, an amount of surface
earth was removed in preparation for the driveway, the exact amount of which
may be in dispute. From an inspection made by the inspector some 16 years later
he was able to see mounds which represented earth which had been removed by the
excavator and the 12-ft gap in the hedge.
Unhappily, the
appellant’s mother then fell ill. It was hoped that she would recover. As she
was personally concerned with the erection of the house, the preparation of a
specification for the work which had been commissioned from a Mr Adam Gelister,
an architect instructed by the Thayer family, was suspended and the work did
not progress. The appellant’s mother eventually died in 1984. The three
children inherited the site from their mother.
In 1965, that
is eight years prior to the permission granted in November 1973 to develop the
site, the general area of the appeal site was designated as part of the
Chiltern Area of Outstanding Natural Beauty under the National Parks and Access
to the Countryside Act 1949. In 1987 the appellant renewed her
was refused by the council, who were acting under powers delegated to them by
Buckinghamshire County Council. An appeal from this refusal was also dismissed.
The plan was then amended and resubmitted in 1988. This was again refused and
it is the appeal from this refusal with which the inspector’s letter was
concerned.
A full public
local inquiry was held into the appeal on February 7 1990 in connection with
which the inspector made a personal inspection of the appeal site. Besides the
written proofs of evidence from the three members of the Thayer family, there
were proofs from their consultant architect, Mr Leslie K Watson, and Mr Martin
Stanley Crook, their planning adviser. All witnesses gave evidence and were
cross-examined before the inspector, as did Mr Gibbon, the principal planning
officer. The council’s case was presented by Mrs Beech from the legal
department of the council. In addition, evidence was received from other
interested persons. It is not necessary to list these except to mention a
witness, Mr Gerald Smith, who is referred to as ‘Gordon Smith’ in the
inspector’s letter. There were other representatives from the parish council
who also gave evidence.
There was some
dispute as to the precise effect of Gerald Smith’s evidence. In an affidavit
sworn on December 3 1990 by John Martin Trotter, a solicitor who represented
the appellant at the inquiry, Mr Gerald Smith is recorded as saying, inter
alia:
. . . that
sometime during the early 1970s he had been walking his dog in Grays Lane and
had witnessed the work being carried out by a JCB which resulted in the removal
of part of the hedge, and he particularly recalled mud spread across the lane;
that he was aware of the intention of the applicant’s mother to build on the
land from conversations he had had with her; that he remembered the small
wicket gate, which had previously been located in the part of the hedge which
was removed.
Mr Sankey
challenged this affidavit, which of course had not been before Sir Graham Eyre
QC, on the grounds that Mr Trotter’s contemporary note made at the inquiry only
read:
Gerald Smith
(address) . . . For the proposal — used to walk dog etc. said he saw entrance
being cut. Remembers gate.
Mr Sankey
submitted that during the 10 months between the inquiry and the date of his
affidavit Mr Trotter’s recollection beyond the contemporary note ought to be
treated with some reservation. I think that there is some force in this
submission. However, the evidence merely corroborates the evidence in the proofs
which had been prepared in advance of the inquiry on behalf of the Thayer
family; and there is no possibility of collusion, since none of the parties
knew that Mr Smith was going to attend the inquiry, let alone give evidence to
the inspector.
Although Mr
Sankey sought to challenge the purpose for which the work at the site was being
carried out, I regret to have to say that, in my judgment, in view of all the
circumstances prevailing at the time, ie in February 1974, there can be no
reasonable doubt that this work was directed to the preparation of the site for
the construction of the house.
In his
decision letter the inspector identified two main issues for his determination,
namely:
1. the effect
the proposal would have on the character and appearance of the Chiltern Area of
Outstanding Natural Beauty having regard to both local and national policies of
restraint; and,
2. if found
to be contrary to those policies, whether there are special circumstances
sufficient to justify overriding the policies.
In paras 3 to
6 inclusive the inspector discussed the planning merits of the application in
relation to the first issue. At para 8 he continued:
8. In
reaching my conclusion on this first issue I have given due weight to the
ministerial decision in 1960 as well as to the 1973 permission and the 1987
appeal. I have also had regard to the attempts that have been made to overcome
the obvious obtrusiveness of the previous schemes. However none of these carry
sufficient weight to alter my conclusions that the character and appearance of
the AONB would be changed and that its natural beauty would neither be
preserved nor enhanced should the proposal be allowed to proceed. On this
basis, therefore, the appeal fails since, in my view, demonstrable harm would
be caused to an interest of acknowledged importance.
The second
issue, with which this appeal is concerned, embraces a contention of the
appellant, notice of which was served prior to the appeal but after the refusal
by the council, that as a result of the work carried out at the appeal site in
1974 the 1973 permission had not lapsed under the provisions of the first
condition in the permission, which had been included to conform with the
requirements of section 41 of the 1971 Act (section 91 of the 1990 Act). It is
now convenient to set out the material parts of the paragraphs relating to the
second issue:
10. Recently
your client became aware of Section 43 of the Town and Country Planning Act
1971 and now considers that work carried out at the site early in 1974 was a
‘specified operation’ in accordance with Section 43(2)(d). It is
contended that work in relation to the 1973 permission commenced and that this
application did not, therefore, lapse in 1987.
11. It was
stated that, early in 1974, the entrance to the site was formed by the removal
of part of the hedge and that a considerable amount of excavation occurred in
order to create a clear accessway to the site area for lorries and necessary
equipment. However, the Council contend that the ‘access’ is ‘no more than a
hole in the hedge’; that it was not even in the position indicated on the
approved drawing; that building regulation records cannot be found; that no
commencement of works was notified and consequently ‘specified operations’ were
not carried out.
12. Having
carefully considered the evidence and having inspected the entrance and
surrounding area, I accept that some work was carried out to form the
approximately 4m wide gap in the hedge. I have no reason to doubt that this
work was carried out in early 1974 and that it consisted of the removal of the
‘wicket gate’ referred to and the removal of the hedgerow and associated
earthworks. However, I only noted small mounds of earth to either side of the
entrance and, in my opinion, there was no clear evidence that ‘a considerable
amount of earth’ was excavated. Neither was it evident to me that ‘a wide
entrance to start a drive towards the site of the house’ had commenced. In
conclusion on this point I am of the opinion that, on the balance of
probability, development as defined in Section 43(2)(d) was not carried
out.
13. In
reaching my conclusion on this second issue I have considered the views
expressed by interested persons both for and against the proposal. I have
particularly noted Mr Gordon Smith’s evidence and the fact that he has been
aware of the site history for some considerable time. I have also been aware of
all the comments made by those people who live nearby. Having considered all
the evidence however, I do not consider that exceptional circumstances have
been put forward to justify any relaxation in the firm policy presumption
against sporadic and unrelated development within the open countryside.
14. I have
considered all the other points raised on behalf of your client including the
fact that this is the last remaining ‘plot’ of the original 2.02 ha (5 acre)
field; that it has not been in farming use since 1950 or thereabouts;
that there are crucial differences between this latest proposal and the
previous scheme and that very special circumstances against an extremely
restrictive background are evident. I have also considered the views in
relation to the gypsy caravan site within the AONB together with all the legal
and planning precedents outlined during the inquiry. However none of these carry
sufficient weight to alter my conclusions on the main points at issue.
15. For the
above reasons and in exercise of the powers transferred to me, I hereby dismiss
this appeal.
The contention
of the appellant is that the inspector’s decision on the second issue is
erroneous. He assumes that the 1973 permission had lapsed. He was in error in
doing this. Had he been of the view that the 1973 permission was valid he might
well have come to a different conclusion; and in any event the minister would
have had to take steps to revoke the previous permission with the statutory
consequences which would ensue. Therefore, it is submitted that the inspector’s
decision should be quashed since, if the appellant’s contention is correct, his
decision was based on a false view of the law.
The question
whether condition (1) of the 1973 permission has been satisfied, namely that
the development to which the permission related was begun not later than the
expiration of five years, depends on whether or not the excavation of the
entrance to the site and the removal of top soil using the excavator described
in the proofs submitted by the Thayer family and the observations of the
inspector when he visited the site some 16 years later qualified for the
purposes of the provisions of section 43(1) of the 1971 Act. The relevant parts
of this section are:
43.–(1) For the purposes of
sections 41 and 42 of this Act, development shall be taken to be begun on the
earliest date on which any specified operation comprised in the development
begins to be carried out.
(2) In subsection (1) of this section ‘specified
operation’ means any of the following, that is to say —
. . .
(d) any operation in the course of laying
out or constructing a road or part of a road;
. . .
In reviewing
the approach made by the inspector to this issue it is important to remember
the purpose for which the condition was imposed in the 1973 permission or, if
it had not been so imposed, would have been imposed by statute under section 41
of the 1971 Act, namely to prevent the accumulation of planning permissions.
The history of this part of the planning legislation is well known. By 1968 an
evil had been recognised which called for remedy in that Act. This was an
accumulation of a large number of planning permissions which had not been taken
up by developers and which, under the existing legislation, attached to the
land unless the minister acted under his powers of revocation, which involved,
of course, compensation where appropriate. Local authorities, therefore, were
embarrassed by these continuing permissions over which they had effectively
lost control. A developer who genuinely set about exploiting his permission
rather than filing it away against ‘a rainy day’ was not the object of the
legislation imposing time conditions which came into effect in the Town and
Country Planning Act 1968 and which were continued in the 1971 Act and are
retained in the Town and Country Planning Act 1990. Section 43(1) effectively
reproduces the provisions contained in the appropriate parts of the 1968 Act
and defines what amounts to commencing the development by reference to a
defined ‘specified operation’. At this point it is convenient to record that Mr
Carnwath, who appeared for the appellant, submitted that the list of specified operations
contained in the section was not exclusive. There may be some force in this
argument; but happily it is not necessary to decide the point, since if the
opening of the gap in the hedge and the limited preparation of the ground was
related to the 1973 permission, which is a prerequisite of section 43, then it
must have been ‘an operation in the course of constructing a road or part of a
road’, namely an access to the site.
In my
judgment, paras 11 to 13 of the decision letter demonstrate that the inspector
was concerning himself not with whether that work which had been carried out in
1974 was related to the planning consent, but whether it was ‘sufficient’ in
extent rather than its purpose in deciding whether it was a specified
operation. In this way he imported into the test an aspect of ‘quantum’ which
is not to be found in the provisions of the section. The judgment of Eveleigh
LJ in Malvern Hills District Council v Secretary of State for the
Environment (1982) 46 P&CR 58 emphasised that the test to be applied is
not the ‘quantum’ of the work involved but whether that work was ‘related to
the planning permission involved’. The question to be asked here, which the
inspector did not ask, is ‘Was the work related to the 1973 permission?’ It is accepted, and rightly so, that the onus
of establishing this must rest upon the appellant as the person who seeks to
prove that ‘the development has begun within the five-year limit contained in
condition (1).’
In the Malvern
Hills case the majority in the Court of Appeal held that the accurate
marking out of a proposed road with pegs amounted to an ‘operation’ in the
course of laying out part of a road and therefore qualified under section
43(2)(d). In his minority judgment Lord Denning MR repeated the approach
which he had adopted in Parkes v Secretary of State for the
Environment [1978] 1 WLR 1308, namely that ‘operation’ comprises activities
which result in some physical alteration to the land, which has some degree of
permanence to the land itself. In this way Lord Denning was able to exclude the
laying out of the work with pegs from the ambit of the word ‘operation’. The
physical removal of the hedge and the excavation of soil with a JCB removes
this case from the exclusion of section 43(2)(d) even on the basis of
Lord Denning’s dissenting judgment. The passage from the judgment of Eveleigh
LJ in the Malvern Hills case at p 70 is, in my judgment, clear authority
for the proposition that the extent of the work is relevant for consideration
only on a de minimis basis:
I therefore do
not regard Parkes’s case as authority for the proposition that there
cannot be an operation within section 43 unless some physical change has
already been achieved.
If an oil
company constructs a drilling rig for testing purposes, but the drill has not
yet pierced the soil, are we to say that it is not carrying on engineering
operations?
This
conclusion seems to me to accord with the intention of the legislature.
Sections 41 and 42 seek to ensure that land will not be held undeveloped for an
indefinite period in the hands of speculators whose only intention is to sell
the land at some future propitious date at the enhanced value that development
permission attracts. Section 43 seeks some earnest of intention to develop. The
specified operations are not necessarily very extensive. Very little need be
done to satisfy the section. That which is done, however, must genuinely be
done for the purpose of carrying out the development.
Notwithstanding
the able arguments of Mr Sankey, I am unable to accept his submission that this
was the question to which the inspector directed his attention. It is, in my
judgment, quite clear that having visited the site, albeit 16 years later, he
accepted ‘that some work had been carried out to form the approximately 4 metre
wide gap in the hedge and that that work had been
‘the removal of the gate and associated earthworks’ had also been carried out
at the same time. The inspector then went on to consider the amount of the
earth which had been excavated and the dimensions of the gap in relation to the
dimensions of the access shown on the plan, namely it was about half that for
which the provision had been made, and he compared the size of the mound of
earth on the site in 1990 with the description contained in the proof from Mr
Richard Thayer. Mr Sankey submitted with vigour that this assessment by the
inspector was a reason for assuming that he had not accepted the evidence of Mr
Richard Thayer, not only as an accurate description of the amount of work done
in 1974 by reference to what he saw 16 years later but also as to the other
aspects of his evidence, namely that it was their mother’s firm intention to
proceed with the building of the house. On this aspect of the case, therefore,
with regret I must say that it is clear to me that the inspector was directing
his attention to the wrong question, namely the degree or extent of the work
carried out and not the question whether, however little it was or however
great it was, it was referable to the 1973 planning consent.
In my
judgment, it is perfectly clear that whatever was done in 1974 was done with
the intention of carrying out the planning permission received the year before.
Had it not been for Mr Sankey’s skill in arguing this point, I would have
thought that the matter was simply unarguable. One only has to pose the
question: If it was not executed in furtherance of the planning permission, to
what purpose was it directed? Put in this
way, it is an argument almost reductio ad absurdum. There is simply no
conceivable reason why the owner of a rough derelict plot should suddenly bring
upon it an earth excavator, remove a substantial proportion of the hedge, quite
sufficient to gain access for motor vehicles, even if it did not comply with
the full plan, destroy a hedge and start removing the top soil, other than the
execution of the permission. In my judgment, the inspector asked himself the
wrong question. Had he posed for himself the correct question, he must have
concluded that the findings of fact recorded in the paragraphs already cited
amounted to a ‘specified operation’ within the provisions of section 43(1).
If I do not
consider in detail the judgment of Sir Graham Eyre QC, I do not intend any
disrespect to him. He posed for himself the correct question at the top of p 4
of the transcript of his judgment:
It seems to
me that the question that the inspector had to ask himself was: am I satisfied
on the evidence available to me that a specified operation comprised in the
development to which the planning permission relates has been carried out in
the sense that there has been an operation in the course of laying out or
constructing a road or part of a road?
As I have indicated, that is a clear question of fact.
The learned
judge was correct to say that the findings were a clear question of fact, but
he failed to identify the omission by the inspector to apply his observations
of fact to the correct legal criteria, and moreover at p 5C-D he introduced a
speculation of his own which was not one considered by the inspector and for
which, with respect to him, I consider there was no mandate:
The hedge may
have been removed for a number of reasons unrelated to the laying out or
construction of a road. Mere removal may have taken place so as to enable
machinery to get on site. In those circumstances, he was not satisfied that an
operation in the course of laying out or constructing a road or part of a road
had been undertaken in 1974.
For those
reasons I have regretfully come to the conclusion that I cannot follow Sir
Graham Eyre QC in upholding the decision of the inspector and I
Secretary of State must be quashed.
STOCKER LJ:
I agree.
FARQUHARSON
LJ: I also agree.
leave to appeal to the House of Lords refused.
