Planning permission granted subject to conditions — Building not to be used, occupied or let otherwise than as five separate units — Inspector refusing to discharge condition — Whether successor in title person aggrieved — Written representations — Whether inspector failed to identify demonstrable harm — Whether inspector had regard to ministerial guidance
Two planning
permissions were granted by the appellants, Tower Hamlets London Borough
Council, for alterations to a building and change of use to business class B1,
in respect of 8 Elder Street, London E1. Each permission was subject to a
condition that ‘the building shall not be used, occupied or let otherwise than
as five separate units’. An appeal against these decisions and seeking the
discharge of the conditions was dismissed by an inspector
The second respondents, Times Investment Ltd, were successful in an application
to quash that decision on the grounds, inter alia, that the inspector
failed to identify whether any demonstrable harm would be caused to interests
of acknowledged importance by discharging the conditions, and because the
inspector had not had proper regard to the guidance in Circular 1/85 — The
use of conditions in planning permissions. Sir Frank Layfield QC (sitting
as a deputy judge of the Queen’s Bench Division) rejected a submission by the
appellant council that Times Investment Ltd did not have locus standi:
see [1989] EGCS 143.
The appellants
appealed that decision on the grounds that the original planning application
had been made by Raycastle Ltd, and the second respondents had acquired the
property at a later date and had not been the applicants for planning
permission; they therefore had no locus standi to challenge the decision
of the first respondent. Further, the first respondent’s inspector had given
adequate reasons in his decision letter, which should be upheld.
appeal was dismissed.
1. The
conditions imposed by the appellants’ original grant of planning permission
were binding on successors in title to the applicants for permission. The
second respondents were therefore persons aggrieved for the purposes of section
245 of the Town and Country Planning Act 1971 and entitled to challenge a
decision of the Secretary of State affecting their property: see Turner
v Secretary of State for the Environment (1973) 28 P&CR 123: see p
114.
2. In the
court below the Secretary of State submitted to the decision’s being quashed on
the ground that the inspector had not applied his mind to the question of
whether there would be demonstrable harm to interests of acknowledged
importance by the discharge of the conditions and had therefore failed to give
any reasons for disregarding ministerial advice in Circular 14/85. Sir Frank
Layfield had also been correct in finding that the inspector had not properly
had regard to the guidance on the imposition of conditions in para 76 of
Circular 1/85: see p 115.
to in the judgments
Grenfell-Baines
(Sir George) v Secretary of State for the
Environment [1985] JPL 256
Turner v Secretary of State for the Environment (1973) 72 LGR 380;
28 P&CR 123; [1973] EGD 1094; 228 EG 335
Appeal against
decision of Sir Frank Layfield QC
This was an
appeal by Tower Hamlets London Borough Council against a decision of Sir Frank
Layfield QC (sitting as a deputy judge of the Queen’s Bench Division), who had
allowed an application by Times Investment Ltd under section 245 of the Town
and Country Planning Act 1971 to quash a decision of the Secretary of State for
the Environment, by his inspector, who had granted planning permission on
appeal subject to conditions.
(instructed by the solicitor to Tower Hamlets London Borough Council) appeared
for the appellants.
(instructed by Ince & Co) appeared for the second respondents, Times
Investment Ltd.
respondent, the Secretary of State for the Environment, did not appear and was
not represented.
following judgments were delivered.
DILLON LJ: This is an appeal by Tower Hamlets London Borough Council (which in
this context apparently prefers to be known as the Bethnal Green neighbourhood
operated by the neighbourhood solicitor from the Neighbourhood Centre), against
a decision of Sir Frank Layfield QC in
an application under section 245 of the Town and Country Planning Act 1971.
The factual
history is that on May 8 1988 a company called Raycastle Ltd applied for
planning permission in respect of certain premises at 4 and 8 Elder Street,
London E1.
The basis of
the application in respect of 8 Elder Street was for alterations to the
building and change of use to business class B1 of the Town and Country
Planning (Use Classes) Order 1987 (SI 1987 no 764). The property is in an area
which is largely residential but includes premises once used for warehousing
purposes. On August 23 1988 the appellant local planning authority granted
planning permission subject to conditions; one of the conditions required the
retention of five separate units in each building.
On September 1
1988 Raycastle appealed, as they were entitled to do under section 36 of the
Act, against that condition. The appeal to the Secretary of State for the
Environment was referred by him to one of his inspectors in the usual way and
was conducted entirely on the papers without any public inquiry. The inspector
gave his decision on behalf of the Secretary of State by a decision letter of
April 28 1989. By that letter the Secretary of State allowed the appeal,
subject to the substitution of a different condition for condition no 2 imposed
by the planning permission granted by the appellant council. The inspector’s
condition no 2, in place of that which I have mentioned, was that ‘the building
shall not be used, occupied or otherwise let than as separate units of not more
than 200 sq metres gross floor area’.
By the time
that decision letter was given Raycastle had sold and transferred the premises
to a company called Times Investment Ltd. The contract of sale to Times was
apparently on October 20 1988 and was completed by a transfer on January 10
1989. Only Raycastle, as the applicants for planning permission, aggrieved by
the condition imposed on the grant of planning permission, could have appealed
to the Secretary of State under section 36.
So far as
section 245 is concerned, subsection (1) provides:
If any person
—
(a) is
aggrieved by any order to which this section applies and desires to question
the validity of that order, on the grounds that the order is not within the
powers of this Act, or that any of the relevant requirements have not been
complied with in relation to that order; or
(b) is
aggrieved by any action on the part of the Secretary of State to which this
section applies and desires to question the validity of that action, on the
grounds that the action is not within the powers of this Act, or that any of
the relevant requirements have not been complied with in relation to that
action,
he may,
within six weeks from the date on which the order is confirmed or the action is
taken, as the case may be, make an application to the High Court under this
section.
Under
subsection (3), section 245 ‘applies to any such order as is mentioned in
subsection (2) of section 242 . . . and to any such action on the part of the
Secretary of State as is mentioned in subsection (3) of that section’.
Subsection (3) of section 242 includes ‘(b) any decision of the
Secretary of State on an appeal under section 36 . . .’. Times therefore
applied to the High Court, or purported to do so, under section 245 as a party
aggrieved.
When that
application came before Sir Frank Layfield QC a preliminary point was taken
that Times had no locus standi. He rejected that and on his substantive decision
a few days later he quashed the inspector’s decision letter given on behalf of
the Secretary of State. The appellant council appeals to this court and
challenges both the decision of Sir Frank Layfield that Times
decision letter. The Secretary of State accepted, before any hearing at first
instance, that the decision letter was defective and ought to be quashed.
So far as locus
standi is concerned, Mr Payton’s principal submission is that the term is
to be construed in a fairly limited way and though Raycastle had locus
standi and were a party to the planning appeal the present respondents,
Times, do not, because they were not a party to the planning appeal. They had
no interest at all at the time that the planning appeal was launched and could
not have appealed against the original condition because they were not the
applicants for planning permission.
However, we
were referred, among other authorities, to the decision in Turner v Secretary
of State for the Environment (1973) 28 P&CR 123, where Ackner J summed
up the earlier authorities and commented on the restrictive view of the meaning
of ‘person aggrieved’ in some of the earlier authorities and on the extent to
which a wider view had been suggested in later authorities. He noted that an
appeal could be based only on the very limited and restricted grounds stated in
section 245 of the Town and Country Planning Act 1971 and went on to express
the view that he could ‘see good reason, so long as the grounds of appeal are
so restricted, for ensuring that any person who, in the ordinary sense of the
word, is aggrieved by the decision, and certainly any person who has attended
and made representations at the inquiry, should have the right to establish in
the courts that the decision is bad in law because it is ultra vires or
for some other good reason’. He rejected the view that there was no
jurisdiction in the court because he was obliged to impose a very restricted
meaning on the words ‘aggrieved person’.
It seems to me
that, as Times had acquired the property from Raycastle and as any conditions
imposed by the inspector in the decision letter would continue to bind the land
in the hands of Times or any subsequent owner, Times are properly to be
regarded as ‘a person aggrieved’ if that decision, which is introduced in the
new condition, had been arrived at without due regard to the matters referred
to in section 245 and not in accordance with the correct procedures. I would
therefore reject the submission that Times had no locus standi before
Sir Frank Layfield or have no locus standi in this court.
I then come to
the substantive ground of the decision. It has been pointed out that, in a case
where a decision can be decided on written submissions, it may often be
possible for an inspector to give a much shorter decision than would be
practical when there has been an inquiry on oral evidence: see the judgment of
Woolf J in Sir George Grenfell-Baines v Secretary of State for the
Environment [1985] JPL 256. But Woolf J went on to say: ‘Although,
therefore, a decision letter on an appeal dealt with in the way this appeal was
dealt with might be brief it had to at least make clear to the parties to the
appeal the conclusions of the inspector on the principal arguments advanced
before him and the reasons that had led to his conclusions.’
It is well
established in planning law that an inspector or the Secretary of State has to
give reasons for his decision after a planning inquiry and those reasons must
be proper and adequate reasons which are clear and intelligible and deal with
the substantive points which have been raised.
Mr Payton
submits that the reasons which led the inspector to his conclusion can really
be deduced without very much difficulty if one looks at the correspondence
between Raycastle and the council before the original planning condition was
imposed and read that with the inspector’s decision letter. He submits further
that Times cannot be in any better position than Raycastle.
I would accept
that Times coming into the case as successors in title to Raycastle are
adopting the arguments and submissions which were made by
submissions, however, refer to various circulars from the Secretary of State
giving government advice in relation to planning appeals and they include
submissions that, consistently with the circulars, conditions such as the
council originally imposed ought not to be imposed or should be revoked.
The Secretary
of State submitted to the decision’s being quashed on the ground that the
decision letter had failed to identify what demonstrable harm to what interest
of acknowledged importance would be caused by discharging the condition and had
therefore failed to give any reason for disregarding ministerial advice in
Circular 14/85, which is dealt with on p 3 of Sir Frank Layfield’s judgment.
Endeavouring to apply Mr Payton’s submissions, I cannot see that the reasoning
which has led the inspector to his conclusions as set out in his decision
letter deals with that objection at all. Furthermore, I agree with Sir Frank
Layfield on the second point that he decided, that the inspector has failed to
give any reason for rejecting the advice in para 76 of Circular 1/85 that:
Conditions
requiring that a large commercial or industrial building should be occupied
either only as a single unit, or alternatively only in suites not exceeding a
certain area of floorspace, represent, in the view of the Secretaries of State,
a significant interference with property rights which is likely to inhibit or
delay the productive use of the buildings affected. Such conditions should
normally be avoided.
The inspector
mentions, in passing, the advice given in para 76, but he wholly fails to give
any reason, as I follow the documents before us, for his rejecting that advice
and imposing such a condition. In these circumstances I would dismiss this
appeal.
PARKER LJ: I agree and there is nothing I can usefully add.
STOCKER LJ:
I also agree.
Appeal
dismissed with costs.