Outline planning permission — Construction of dwellinghouse next to listed barn — Barn destroyed in severe gale — Meaning of condition — Effect of approval of reserved matters — Whether planning permission remained capable of implementation
The appellants,
Burhill Estates Co Ltd, owned land and buildings at Woking Park Farm, Old
Woking, Surrey. One of those buildings was a listed barn. On January 11 1983
the appellants applied to the respondents, Woking Borough Council; for outline
planning permission for the erection of a two-storey dwelling with access
drives and their application was accompanied by two plans 2283 and 61282B.
(Plan 2283 showed elevations of the proposed house together with a site
drawing. Wording on it indicated that the house was to be positioned to form an
enclosed courtyard with the listed barn. Plan 61282B showed an
outline planning permission subject to a number of conditions including one
reserving matters of detail for further approval. A separate condition
(condition 3) read as follows: ‘The development hereby approved shall be
carried out and completed in all respects strictly in accordance with the
submitted and approved plans’.
Almost three
years later the appellants applied to the respondents for approval of the
matters reserved in the outline planning permission, supporting their
application with two new plans 12386 and 25382. (Drawing 12386 showed walls
running from the ends of the proposed house to the barn in order to form a
courtyard. Drawing 25382 showed details of the works proposed to the
barn.) Approval was granted subject to a
number of conditions, one of which (condition 2) was framed in identical terms
to condition 3 of the outline planning permission. The development was not
commenced and so, following a further application, the approval of reserved
matters was renewed in 1988 in the same terms.
In January
1990 the listed barn was blown down and completely demolished in a severe gale.
The responden.ts wrote to the appellants contending that as a result of this
the outline planning permission could not be implemented in its entirety. The
appellants then carried out works, namely the digging of some foundations,
which it was acknowledged amounted to the start of permitted development within
the appropriate time-limit provided that the planning permission remained
effective. They subsequently issued an originating summons in the High Court
claiming a declaration to the effect that the outline planning permission was,
and remained, a valid permission capable of being implemented.
Popplewell J
held that the expression ‘the submitted and approved plans’ in condition 3 of
the outline planning permission referred to the plans 2283 and 61282B. They
therefore had to be read together with the application because they formed part
of the application and formed part of the outline planning permission. The
proper interpretation of the application, together with the plans, was that the
house was to be built with the listed barn associated with it so as to form a
courtyard. Accordingly, he refused to grant the declaration sought. The
appellants appealed.
The expression
‘the submitted and approved plans’ in condition 3 of the outline planning
permission referred to the plans 12386 and 25382, which were later submitted
and approved with the approval of reserved matters. The effect of condition 3
of the outline planning permission was to ensure not merely that such details
should be submitted and approved but also that the work should then be carried
out in exact compliance with those approved detailed plans. That was made
absolutely clear by the fact that condition 2 of the approval of reserved
matters was drafted in precisely the same terms as condition 3 of the outline
planning permission: see p59D-G.
The outline
planning permission was for the ‘erection of a two-storey dwelling with an
access drive’. The plans 12386 and 25382, which showed details of the siting
and design and which were later approved, could not and did not detract from or
qualify the outline planning permission. As a matter of law that would be an
invalid restriction. The declaration sought, namely that the outline planning
permission was a valid permission capable of being implemented despite the
destruction of the listed barn, should accordingly be granted: see p61B-D.
Decision of
Popplewell J reversed
to in the judgments
Pioneer
Aggregates (UK) Ltd v Secretary of State for the
Environment [1985] AC 132; [1984] 3 WLR 32; [1984] 2 All ER 358; (1984) 82
LGR 488; 48 P&CR 95; [1984] EGD 1094; 272 EG 425, [1984] 2 EGLR 183; [1984]
JPL 651, HL
Proberun
Ltd v Secretary of State for the Environment [1990]
3 PLR 79; [1990] JPL 585, CA
Appeal against
decision of Popplewell J
This was an
appeal against the decision dated July 29 1992 of Popplewell J refusing to
grant a declaration to the effect that a planning permission granted by Woking
Borough Council on March 16 1983 was a valid permission capable of being
implemented.
Stephenson (instructed by Travers Smith Braithwaite) appeared for the
appellants, Burhill Estates Co Ltd.
Straker (instructed by the solicitor to Woking Borough Council) appeared for
the respondents.
following judgments were delivered.
GLIDEWELL LJ: This is an appeal against a decision of Popplewell J given on July
29 1992, when he refused to grant a declaration on the application of the
plaintiff company. The declaration sought was to the effect that a planning
permission granted by the defendant council on March 16 1983 was and is a valid
permission capable of being implemented by the plaintiff company, Burhill
Estates.
The facts
which gave rise to this application are that Burhill Estates were and are the
owners of land and buildings formerly part of Woking Park Farm, Old Woking,
Surrey. The buildings included two farm cottages and four barns, one of which
was on the list of buildings of architectural and historic importance and
therefore subject to the control imposed by the relevant sections of the Town
and Country Planning Act in relation to such buildings.
On January 11
1983 Burhill Estates made three applications for planning permission, each
relating to a different part of the former farm. We are concerned with the
permission granted as a result of application 83/40, which related to the
southernmost part of the total area. The application was for an outline
permission for ‘the erection of a two-storey dwelling with access drives’. In
the application form it was indicated that neither the siting of the proposed
dwelling nor the means
On the
application site there were a number of existing buildings including the listed
barn. The application was accompanied by two plans 2283 and 61282B. On March 16
1983 the borough council granted outline planning permission. The form of
permission reads:
Woking
Borough Council as local planning authority have GRANTED outline planning
permission for the following development:
erection of a
two storey dwelling with access drive on land adjacent to Listed Barn, Park
Farm Cottages, Carters Lane, Old Woking. Drawing No 2283, dated 2 February 1983
and 61282 Rev B received 8 February 1983. Approval is granted subject to the
following conditions. . .
Condition 1
reserved for further approval all the normal matters of detail which can be
reserved in an outline permission, including the siting and the access, despite
the application not intending that they should be reserved. Condition 2 was the
normal condition requiring that application for approval of the details referred
to in condition 1 should be made not later than the expiration of the period of
three years beginning with the date of the permission and that the development
itself should commence not later than whichever was the latest of five years
from the date of the permission or two years from the final approval of detail.
Condition 3 is
the ground on which the contest in this appeal has been waged. It reads:
The
development hereby approved shall be carried out and completed in all respects
strictly in accordance with the submitted and approved plans.
Reason: to
ensure the development will be carried out as approved.
I must refer
also to condition 4:
Such steps and
such work shall also be taken to strengthen any part of the historic structure
which is found to be deficient during the progress of the work in order to
ensure its continued stability.
Reason: to
safeguard the building.
Condition 5 is
not relevant to this appeal, nor is condition 6, which I refer to only to note
that it is a condition providing that the occupation of the dwelling is to be
limited to persons wholly employed or last employed locally in agriculture or
forestry or a dependent of such a person.
Almost three
years after that outline permission was granted on March 13 1986 Burhill
Estates applied for approval of the matters reserved in the outline permission.
At the same time they applied for listed building consent in relation to the
listed barn building. The work which is described as requiring listed building
consent is ‘refelt batons and tile roof, reclad and generally renovate’. Both
forms of application referred to the same two drawings, nos 12386 and 25382. It
is to be noted that neither of them were drawings referred to in the outline
permission.
It is right to
say that on the application for approval of detail, the proposed development is
described as:
Erection of
two-storey dwelling associated with listed barn as garage for occupation of
agricultural worker.
The form, as
Mr Timothy Straker has pointed out to us, contained a box asking ‘Are any
listed buildings to be altered?’, to which the answer was properly ‘Yes’ and
‘If yes, do you wish this application to be treated as an application for
listed building consent?’, to which the answer was also put, ‘Yes’, despite the
fact that simultaneously a second formal application for listed building
consent was submitted.
Both
applications were granted. The form of approval of reserved matters reads:
Woking
Borough Council as local planning authority have granted approval of reserved
matters . . .
Then it says
‘planning permission’, but presumably that is a phrase that ought to have been
crossed out:
for the
following development:
approval of
Reserved matters pursuant to Consent 83/40 for the erection of two storey
dwelling to be occupied by an agricultural worker on land adjacent to the
Listed Barn,
which is
virtually a repeat of the description of the development contained in the
outline permission.
The approval
was granted subject to a number of conditions. The first was the time condition
and the second was an exact repeat of condition 3 in the outline permission:
The
development hereby approved shall be carried out and completed in all respects
strictly in accordance with the submitted and approved plans.
There were
another seven conditions but I do not find it necessary to refer to them. There
was also a form of grant of listed building consent, which rather oddly
described the listed building consent as being approval of reserved matters and
repeated precisely the same conditions.
The development
was not commenced within two years of the grant of the detailed approval and so
a further application was made in 1988 for the renewal of the detailed approval
and that was also granted; it contained the same conditions as that contained
in the 1986 approval and the description of the development was the same, that
is to say:
Renewal of
Reserved Matters application 86282 subsequent to our outline approval 83/40 for
erection of detached dwelling on land adjacent to Listed Barn.
On January 25
1990 the construction of the single dwellinghouse had still not commenced. On
the night of that day, there was a severe gale and the listed barn was blown
down and completely demolished. Burhill
I emphasise to say that the borough council have at all times accepted that the
barn was demolished as a result of the gale; in other words it was an act of
God. If there had been any suspicion in anybody’s mind that the Almighty had been
assisted by human agency in the destruction of the barn, that suspicion
apparently was never voiced by the council and was fairly rapidly put at rest
by their inspection and they certainly do not suggest anything of that nature
in these proceedings.
In response to
the letter from Burhill Estates informing them of the destruction of the barn,
the borough council replied first in a letter, which ignored the renewal of the
consent in 1988, so nothing turns on that, but then in a second letter dated
June 21 1990, the borough planning officer said:
In my view
the latest reserve matters application (88/0272) is valid insofar as it has not
yet expired. However, it would appear that you are now unable to implement that
planning permission in its entirety since part of the proposal involved the
conversion of the Listed Barn into garaging for the occupiers of the proposed
dwelling. Condition 2 of that permission requires that ‘the development hereby
approved shall be carried out and completed in all respects strictly in
accordance with the submitted and approved plans’. In my opinion the conversion
of the barn was an integral part of that planning application and now that the
barn has collapsed it is not possible to comply with that condition.
He then went
on to refer to condition 4 of the outline permission. I should say that the
reference in the paragraph I have read was clearly the condition 2 in the
detailed approval. The letter finishes:
In conclusion
I am of the opinion the reserve matters application can no longer be
implemented in view of the collapse of the barn which formed part of the
proposal. It will therefore be necessary to submit a new application for the
erection of a dwelling, together with associated garaging/parking.
The dispute
that thus became apparent was not resolved. Shortly afterwards Burhill Estates
carried out work, namely the digging of some foundations, which, if the
planning permission remained effective, is conceded as amounting to the start
of permitted development within the time-limit. They informed the borough
council that they were doing so in a letter of June 28 1990. The dispute was
still unresolved and thus Burhill Estates, on November 20 1991, issued the
originating summons claiming a declaration which brought them before Popplewell
J. It seems to me that this was an entirely sensible and proper course for them
to adopt in order to have the court resolve the dispute. An alternative course
which was adopted, for instance, in the Pioneer Aggregates1
case where though the facts were very different a similar situation arose, was,
having done the work of digging the foundations which constituted a start to
the development, to invite the borough council to serve an
notice to the Secretary of State, and then if necessary an appeal to the High
Court. The process of dealing with the matter by way of originating summons
seems to me to be sensible because it cut out one step. The likelihood was that
the matter was going to have to come to the court anyway.
1Pioneer Aggregates (UK) Ltd v Secretary
of State for the Environment (1984) 272 EG 425, [1984] 2 EGLR 183.
It is clear
from the material before us that at all relevant times until the listed barn
blew down, both Burhill Estates and the borough council were proceeding on the
basis that the barn should be used as a garage. Burhill Estates intended that
the barn should have some modest structural work done to it, to put it into
good order, that the house should be erected in a position where, together with
the barn a courtyard would be formed, and that the barn would become the garage
to the house. I imagine that at the time when the applications for planning permission
and later for detailed approval were made nobody gave any thought to the
possibility that the barn might accidentally be destroyed, though obviously
with any building that is a possibility.
The real
question which arose before Popplewell J and arises on this appeal can be
framed in this way: was the planning permission which was granted contingent
upon or in some way conditional upon the continued existence of the listed
barn, so that, as the borough council maintained, when the listed barn ceased to
exist the planning permission ceased to be capable of implementation.
The argument
for the borough council before Popplewell J was based on both conditions 3 and
4 in the outline permission. As to condition 4, Popplewell J said at p4B of his
judgment:
I deal with
condition 4 first. It is quite clear that that provision, which was there to
ensure that during the work, in effect, the barn was not damaged, has no
relevance at all to the situation which now obtains. There is no question of
the structure being found to be deficient during the progress of the work
because the structure does not exist, and if that were the only matter upon
which the local authority relied, I would have no hesitation rejecting their
argument.
The contrary
has not been argued before us on behalf of the borough council and I regard
Popplewell J’s expression of opinion in that passage as clearly correct. So the
dispute before us turns upon condition 3 in the outline permission. I remind
myself of the wording of that condition:
The development
hereby approved shall be carried out and completed in all respects strictly in
accordance with the submitted and approved plan.
The
submissions by both parties to Popplewell J, and indeed initially to us, were
on the basis that the ‘submitted and approved plans’ meant the plans submitted
with the application for outline permission and referred to in that permission.
Not surprisingly Popplewell J accepted that that was the meaning of the phrase
‘submitted and approved plans’. He said at p4 of his judgment:
I ask myself
what are the submitted and approved plans, and it is clear that
judgment, together with the application form because they form part of the
application and form part of the outline permission.
The judge then
went on to consider in his judgment some of the details contained in those
drawings. Drawing 2283 is a drawing showing several elevations of the proposed
house together with a site drawing. He said accurately that on that drawing:
On either side
of the house these words are to be found:
‘Traditional farmhouse construction
positioned to form enclosed courtyard with listed barn’,
and one asks
oneself what is the relevance of that?
Is it simply a description of where the house is to be, or is it part of
the application that the house and barn are to be looked at together so as to
form an enclosed courtyard?
I break off to
say that the word ‘application’ in that sentence means permission, because that
is what he was considering. The judgment continues:
Because if it
is to be considered as being linked, then the absence of the barn is a matter
which is relevant because condition 3 cannot be complied with. As the point has
been put simply in argument, is the presence of the barn an integral part of
the planning permission?
He then turned
to the second drawing, no 61282B. That drawing is, to be more precise, a series
of drawings on one sheet. Most of them related to the development which was the
subject of another permission and thus nothing to do with the present appeal.
But the drawing does contain drawings of the listed barn and among other
matters it shows an intention to insert an additional door into the barn, to do
some work to the roof and to install a steel tie-bar. The learned judge said at
p5E:
That is a plan
which is, in my judgment, of no relevance at all; it simply shows a plan of the
listed barn and was used, as I understand it, primarily in the reserved matters
application. More significant is the fact that the drawing has these words on
it, ‘Proposed dwelling associated with Listed Barn’.
I come back
to the question: is the application together with the plans an application
simply for a house which may happen to have a listed barn by it which conveniently
can be used as a garage, or is the proper interpretation of the application
together with the plan that the house is to be built with the barn associated
with it so as to form a courtyard? I
have come to the conclusion that it is the latter which is the proper
interpretation of the application itself and, more particularly, of the two
plans to which I have referred.
He therefore
concluded that the permission was no longer effective, (he used the word
‘valid’ but ‘effective’ is a more accurate word) and he therefore declined to
grant the declaration sought.
Two problems,
as Mr Geoffrey Stephenson for Burhill Estates pointed out in his submissions to
us, arise from the wording and proper interpretation of condition 3 if the
plans referred to in condition 3 on
outline permission. The first is that condition 3 potentially conflicts with
condition 1, since condition 1 required that the development should not
commence until details of the siting, design, external appearance of the house
and the means of access thereto had been submitted to and approved by the local
planning authority. It was an obvious possibility that the details of one or
more of those matters submitted for eventual approval would not be exactly the
same as those shown on the two plans 2283 and 61282B. Indeed, that proved to be
the case because in the end, to take only one example, the fenestration of the
dwellinghouse, which was approved in detail, differed quite markedly from that
shown on plan 2283. That had a sketch of a house and the detail finally
approved was of a somewhat different nature.
The second
conflict is that the wording of condition 3 is ‘submitted and approved plans’,
but the effect of condition 1 is that the detail in the plans with the outline
permission was not being approved, it was specifically reserved for later
approval. So it follows that there must be at this stage considerable doubt
about the proper interpretation of condition 3. What then does it mean?
The answer was
supplied yesterday by my lords in sequence. First Simon Brown LJ and then Peter
Gibson LJ during course of argument suggested that the ‘submitted and approved
plans’ referred to in condition 3 were the plans later submitted and later
approved with ‘for approval of the reserved matters’, and the effect of
condition 3 on the outline permission was to ensure not merely that such
details should be submitted and approved, but having been submitted and
approved that the work should therefore be carried out in exact compliance with
those approved detailed plans.
Mr Stephenson,
having started off yesterday on the basis that the words referred to the plans
approved in the outline permission later adopted the argument suggested to him
by my lords and submits now that the plans there referred to are those
submitted with the application for detailed approval. That this is correct is
to my mind made absolutely clear by the fact that when the reserved matters
were approved, both in the original approval and in the renewed approval in
1986 and 1988 respectively, condition 2 in those documents was in precisely the
same terms as 3 in the outline, namely:
The
development hereby approved shall be carried out and completed in all respects
strictly in accordance with the submitted and approved plans
and in its
context that can only mean the submitted and approved plans ‘submitted and
hereby approved’.
The
application for approval of detail, as Mr Straker has pointed out to us,
describes the development proposed as ‘erection of two-storey dwelling
associated with a listed barn as garage for the occupation of agricultural
workers’ and the drawings that were referred to and submitted were 12386 and
25382. The approval itself, quite properly, was in these terms:
Woking Borough
Council as local planning authority have granted approval of reserved matters
for the following development:
Approval of
Reserved Matters pursuant to consent 8340 for the erection of a two storey
dwelling to be occupied by an agricultural worker on land adjacent to the
listed barn.
Drawing 12386
shows elevations and sections of the house with the barn adjacent to it. It
also shows walls running from the very ends of the house to the barn in order
to form a courtyard. Drawing 25382 shows, among other matters, the details of
the work proposed for the barn which were the insertion of the tiles and
reroofing.
A planning
permission is a public document. It must (and this is trite law) make
reasonably clear to all interested persons, including, of course, people who
were not concerned in the obtaining of the planning permission, neighbours and
possible intending purchasers, what is the development that is permitted, and
what are the restrictions or conditions on the carrying out of that permitted development.
In my view, simply looking at drawings 12386 and 25382 would not suffice to
inform, for example, a possible purchaser that the construction of the house
was linked with the retention of the barn so that it was only permitted to be
constructed so long as the barn remained in existence. But if the original
planning permission did not make that clear, as in my view it did not, if
something in the detailed approval sought to impose such a restriction, then as
a matter of law that would be an invalid restriction because it would detract
from the outline permission by imposing a restriction on its exercise which was
not contained in the original permission. In my judgment, a grant of detailed
approval may not in law detract from the permission which requires such
approval. As Mr Stephenson pointed out in argument, this is a different aspect
of the problem considered by this court in Proberun Ltd v Secretary
of State for the Environment [1990] 3 PLR 79. The facts of that case were
very different. It turned on the necessity for the construction of an access
from the lane which served the proposed development to an adjoining road. But
in the course of my judgment in that case, with which the other two members of
the court Stewart-Smith LJ and Sir David Croom-Johnson agreed, I referred at
p86 to the problem that there arose in these words:
What then are
the limits placed by the outline planning permission on the planning
authority’s power to approve or disapprove details that are submitted?
The nearest
expression of high judicial authority on the point is in the speech of Lord
Morris of Borth-y-Gest in Kingsway Investments (Kent) Ltd v Kent
County Council [1971] AC 72. The case itself was on a totally different
issue. The House of Lords held that a condition could validly be inserted in an
outline permission requiring the application for approval of detail to be made
within a given time. But in his speech Lord Morris said, at p96A:
‘So if permission is granted after an
outline application the applicant clearly knows that that permission is
conditional and that it will not be of use to him until he is able to submit
details as to siting and design and the like which are acceptable. It must, of
course, be assumed that the authority will act in good faith. They must not
misuse their functions so as indirectly and without paying compensation to
achieve what would
refusal by them to give approval of details submitted to them can be the
subject of an appeal to the Minister. The Minister may overrule the authority.’
In my
opinion, if a planning authority, perhaps because they regret that outline
planning permission has been granted, refuse to approve detailed proposals for
access within the boundaries of the site, and make it clear that only a scheme
for access which involves the developer acquiring rights outside the land
currently under their control will be approved, it is, to adopt Lord Morris’s
wording, misusing their function so as to achieve, without compensation, what
would amount to a revocation or modification of a permission already given.
Such a misuse of power patently is unlawful.
My conclusion
on this appeal I express as follows: the outline permission refers to drawings
2283 and 61282B, but these are not the ‘submitted and approved plans’ to which
condition 3 on that permission refers. That permission is for the ‘erection of
a two storey dwelling with an access drive’. The description on the plans
adjacent to the listed barn is a description of the site on which the house may
be erected, but does not qualify the permission. The plans showing details of
the siting and design which were later approved cannot and do not detract from
or qualify the planning permission. I would therefore grant the declaration
sought that the outline permission is a valid permission capable of being
implemented despite the destruction of the listed barn. For these reasons I
would allow this appeal.
SIMON BROWN
LJ: I agree.
PETER
GIBSON LJ: I also agree.
Appeal
allowed. Appellants to have costs; order for costs in favour of the respondents
in the court below is quashed; no order for costs below. Leave to appeal to
House of Lords refused.
