Planning condition — Requirement in permission for change of use to remove part of building — Whether inspector adequately considered lawfulness of condition — Whether judge entitled to consider justification for condition
In March 1991 the appellant company was granted planning permission
for the change of use to, inter alia, research and development use and
ancillary offices in respect of a barn situated within the curtilage of a Grade
II listed building. The permission was subject to a condition that required a
section of the main barn to be demolished within two years of occupation.
Following a decision of the respondent council dismissing an application to
remove the condition, the company appealed to the Secretary of State
contending, inter alia, that demolition of part of the barn was
unrelated to the change of use of the whole curtilage and was ultra vires.
That appeal was dismissed. On an appeal against that decision, the company
contended that the inspector had failed to adequately consider the submission
that the condition was ultra vires. The judge in the court below
concluded that he, the judge, was entitled to determine whether the condition
was justified as being one related to the permitted development and dismissed
the appeal. The company appealed against that decision, contending that the
judge was wrong to determine the issue of the lawfulness of the condition
himself. It must first be determined by the decision maker, the Secretary of
State.
The inspector’s treatment of the question as to the lawfulness of
the condition was inadequate. The approach was contrary to the approach in Newbury
District Council v Secretary of State for the Environment [1981] AC
578. There was no obvious connection in the present circumstances between the
change of use of the listed building and the demolition of the barn. There was
no suggestion that fear of over-intensive use of the site led to the condition
or that use of the barn other than for ancillary storage was contemplated: see
p6B. There was great force in the company’s submission that a change of use
that involved no change in the appearance of the building, which it was the
object of listing to preserve, could not be made conditional upon the
demolition of an ancillary building in the grounds. It was different from the
demolition contemplated in the example given in para 25 of Circular 11/95. The
decision letter was defective in that a principal issue raised was not
sufficiently addressed by
the inspector, who adopted the approach of the local planning
authority in their written submissions. The judge in the court below was wrong
to decide this issue for himself and to hold, in effect, that any defect in
reasoning, if there was one (upon which he did not invite submissions from the
Secretary of State), was irrelevant because the judge himself could determine
the matter: see p6G.
Grenfell-Baines (Sir George) v Secretary of State for
the Environment [1985] JPL 256
Newbury District Council v Secretary of State for the
Environment [1981] AC 578; [1980] 2 WLR 379; [1980] 1 All ER 731; (1980) 78
LGR 306; 40 P&CR 148; [1980] JPL 325, HL
Save Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 153; sub nom Save Britain’s Heritage v Secretary of
State for the Environment [1991] 2 All ER 10; (1991) 62 P&CR 105;
[1991] 3 PLR 17, HL
Tarmac Heavy Building Materials UK Ltd v Secretary of State
for the Environment, Transport and the Regions (2000) 79 P&CR 260
Appeal against the decision of Judge
Rich QC (sitting as a deputy judge of the Queen’s Bench Division)
This was an appeal by Delta Design & Engineering Ltd against a
decision of Judge Rich QC, sitting as a deputy judge of the Queen’s Bench
Division, refusing its application to quash a decision of the Secretary of
State for the Environment, Transport and the Regions, who upheld the decision
of South Cambridgeshire District Council refusing to grant planning permission
for the removal of a condition on a previously granted planning consent.
appeared for the appellant, Delta Design & Engineering Ltd.
the first respondent, the Secretary of State for the Environment, Transport and
the Regions.
did not appear and were not represented.
PILL LJ: This is an appeal by Delta Design & Engineering
Ltd (the company) against a decision of Judge Rich, sitting as a deputy High
Court judge on 16 October 1998.
The judge refused an application by the company to quash a decision
of the Secretary of State, given by an inspector appointed by him, in a letter
dated 11 March 1998. The inspector had dismissed an appeal by the company
against a decision of the South Cambridgeshire District Council (the council)
refusing planning permission for the removal of a condition on a previously granted planning consent.
Newton Hall is a Grade II listed building situated on the
south-west edge of the village of Newton, Cambridgeshire. It is located in an
extensive area of parkland, all of which is contained within
the Cambridge green belt. In the grounds of Newton Hall is a large
barn. On 14 March 1991 the council granted, subject to conditions, ‘permission
for change of use to research and development use, ancillary offices, assembly,
the testing of optical fibre manufacturing equipment and ancillary stores’. A
condition of the permission required that a section of the main barn should be
demolished within two years of occupation. That condition was later relaxed to
require removal by 12 October 1997. What gave rise to the appeal was the
council’s refusal, on 10 June 1997, to remove that condition. The reason given
was that it ‘would result in the loss of the opportunity to achieve the valid
and desirable objective of enhancing the approach to and the setting of Newton
Hall, a Grade II listed building’. That reason repeated the reason given for
the original imposition of the condition.
The appeal was determined upon the basis of written
representations. The company submitted that demolition of a part of the barn
was unrelated to the change of use of Newton Hall and was therefore ultra
vires. It was submitted that ‘the condition which required the demolition
of a part of the barn was totally unrelated to the proposed change of use of
Newton Hall’. Other issues were also raised. The council submitted in writing
that, when considering the proposed use of Newton Hall, the determination of
the planning application for change of use had to be approached with a degree
of compromise. The use was clearly not ideal for this type of historically
important building, but it did ensure the building’s retention at the time of
the application. The use, however, had a marked effect on the character of the
building and its setting, and the council considered that this adverse effect
could, in part, be off set by an improvement to the setting of the building by
demolition of a part of the barn. The application was dealt with, it was
submitted, as a matter of compromise, weighing the adverse effects of the
development on the character and setting of the building against its retention.
The disputed condition was the result of that compromise. Demolition of the
front of the barn would improve the setting of the listed building. That
improvement was intended, in part, to off set the harm to the setting caused by
the use of the building that the permission allowed.
Subject to a point on car parking, which I will mention later, the
alleged adverse effect of the change of use upon the appearance and setting of
the building is neither particularised nor explained in detailed written
submissions. What the written submissions amount to is a case that, if a change
of use is granted, the council are entitled, as a quid pro quo, to
require work that would enhance the setting of the listed building. It was also
submitted by the council that the application for the change of use covered a
site that included the barn. The requirement to demolish a part of the barn was
‘part of an overall consideration of the change of use of the site and not
considered ultra vires‘.
The inspector concluded that ‘the section of the barn which is the
subject of this appeal intrudes into and visually dominates the main
approach to Newton Hall’. As a planning judgment, that finding is
not, and could not, be challenged. The inspector continued at para 9 of his
letter:
In assessing the relevance of the condition in relation to the
development permitted you (that is the company) maintain that planning
permission should have been forthcoming without the condition as the overriding
aim of the Council at that time was to secure the economic viability of Newton
Hall so that the necessary repair and maintenance works would be carried out to
ensure the retention of the listed building. While I observed that this
objective had been achieved and that the listed building was in economic use, I
remain of the view that, as an integral part of the restoration scheme, the
condition is necessary and relevant to planning in order to secure a visual
enhancement of the approach to Newton Hall.
Before the judge, it was argued that, in his decision letter, the
inspector had failed adequately to consider the submission that the condition
was ultra vires, and, in so far as he did consider it, that his
reasoning was inadequate and inadequately expressed.
In deciding the case, the judge’s approach was first to hold that
the condition ‘was justified as being one related to the permitted
development’. The judge held that it was open to him to decide that question,
and ‘the fact that the Inspector had not considered properly and given full
reasons as to whether or not the (condition was lawfully imposed) could hardly
be relevant to his determination of the appeal on other grounds’.
That approach has led to a submission by the company in this court
that the judge was wrong to determine the issue of the lawfulness of the
condition himself. It was to be determined in the first instance by the
decision maker; that is, the Secretary of State.
In my judgment, the first question to be decided is whether the
inspector has sufficiently considered and reasoned the submission made to him
that the condition was unlawful. It is common ground that, in the present
circumstances, the question is whether the condition fairly and reasonably
relates to the permitted development: see Newbury District Council v Secretary
of State for the Environment [1981] AC 578. Of the several criteria by
which the validity of a planning condition is to be decided, that is the
relevant one, and the only relevant one in this case. Lord Scarman stated at
p621A:
Was it fairly and reasonably related to the permitted development,
ie a temporary change of use? This was for the Minister in the light of all the
circumstances to decide; and he decided it. I would comment only that the
Minister, being the ultimate authority on planning questions arising in the
enforcement of planning control, is the appropriate authority to determine
whether a condition ‘sufficiently’, ie fairly and reasonably, relates to the
permitted development.
Viscount Dilhorne stated at p600F:
Although it may be that only in exceptional cases could it be held
that a
condition requiring the removal of buildings fairly and reasonably
related to the grant of permission for their use, such cases may occur.
And then at p601:
If in the circumstances of this case the condition imposed was
not, in the Secretary of State’s opinion, fairly and reasonably related to the
permission granted, the courts cannot interfere with his conclusion unless it
is established that he misdirected himself or reached a conclusion to which he
could not reasonably have come.
Lord Fraser stated at p609E:
There was nothing that I can see about the change of use to a
wholesale warehouse which required or justified a condition for removal of the
buildings. The reason why the planning authority ordered their removal was to
improve or restore the amenity of the neighbourhood by getting rid of ugly
buildings. No doubt that was a very proper object, but it had nothing
particularly to do with the use of the buildings as warehouses.
Ministerial guidance as to the effect of the law appears in
Circular 11/95, entitled ‘The use of conditions in planning permissions’. That
provides under the heading ‘Relevance to the Development to be Permitted’:
24. Unless a condition fairly and reasonably relates to the
development to be permitted, it will be ultra vires.
25. Thus it is not sufficient that a condition is related to
planning objectives: it must also be justified by the nature of the development
permitted or its effect on the surroundings. For example, if planning
permission is being granted for the alteration of a factory building, it would
be wrong to impose conditions requiring additional parking facilities to be
provided for an existing factory simply to meet a need that already exists, and
similarly wrong to require the improvement of the appearance or layout of an
adjoining site simply because it is untidy or congested; despite the
desirability of these objectives in planning terms, the need for the action
would not be created by the new development. Nevertheless it is proper for
conditions to secure satisfactory access, for example, or parking facilities,
genuinely required by the users of the proposed development. Conditions can
also be proper where the need for them arises out of the effects of the
development rather than its own features; where a permission will result in
intensification of industrial use of a site, for instance, a condition may be
necessary requiring additional sound-insulation in the existing factory
buildings. It may even be justifiable to require by condition that an existing
building be demolished — perhaps where to have both would result in the site
being over-intensively developed.
As to the approach to be adopted when an appeal is determined on
the basis of written submissions, Woolf J said in Sir George Grenfell-Baines
v Secretary of State for the Environment and Sheffield City Council
[1985] JPL 256, at p257:
Although, therefore, a decision letter on an appeal dealt with in
the way this appeal was dealt with [that is by way of written submissions]
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 conclusion.
In Save Britain’s Heritage v Number 1 Poultry Ltd
[1991] 1 WLR 1531, Lord Bridge stated at p168C:
If it was necessary to the decision to resolve an issue of law and
the reasons do not disclose how the issue was resolved, that will suffice.
1[1999] 3 PLR 17
I consider the inspector’s treatment of the question raised as to
the lawfulness of the condition to be inadequate. He was not helped by the
manner in which the council put their case to him, with the repeated suggestion
that it is sufficient to show that the condition imposed upon the change of use
would improve the appearance and setting of the building. That approach is
contrary to the approach in Newbury, and, in particular, the statement
of Lord Fraser to which I have referred. There is no obvious connection in
present circumstances between the change of use of the listed building and the
demolition of the barn. There is no suggestion that fear of over-intensive use
of the site led to the condition or that use of the barn other than for
ancillary storage was contemplated.
The inspector stated in para 6 of his decision letter that ‘the
principal issue in this case is whether the retention of the north-western
section of the main barn would result in the enhancement of the approach to and
the setting of Newton Hall’. That formulation of the issue ignores the relevant
Newbury limitation on the power to impose conditions. Para 9 must be
read in the light of the inspector’s belief as to what was the principal issue.
In para 9 the condition was said to be necessary and relevant ‘in order to
secure a visual enhancement of the approach to Newton Hall’. That reflects the
inspector’s view as to what was the principal issue and does not address the
question of whether the desirable aim of enhancing the setting of the building
fairly and reasonably relates to the change of use that the permission granted.
The statement that the condition was necessary ‘as an integral part of the
restoration scheme’ also begs the question of whether the condition is lawful.
The justification for that statement, expressed in the same sentence, was ‘to
secure a visual enhancement of the approach to Newton Hall’.
In my judgment, there is great force in the company’s submission
that a change of use that involves no change in the appearance of the building,
which it was the object of listing to preserve, cannot be made conditional upon
the demolition of an ancillary building in the grounds. It is quite different
from the demolition contemplated in the example given in para 25 of Circular
11/95. If the submission of the company were to be rejected, it required
specific and detailed attention. The decision letter is defective in that a
principal issue raised was not sufficiently addressed by the inspector who
adopted the approach of the local planning authority in
their written submissions. Moreover, in my judgment, the judge was
wrong to decide this issue for himself and to hold, in effect, that any defect
in reasoning, if there was one (upon which he did not invite submissions from
the Secretary of State) was irrelevant because the judge himself could
determine the matter.
In the written submission of Mr Timothy Corner, for the Secretary
of State, to this court, it was stated in para 15:
Given that whether the condition fairly and reasonably relates to
the proposed development is a matter of law, it was a matter on which the
learned judge was entitled to reach a conclusion.
Mr Corner, rightly in my view, has resiled from that submission. It
is inconsistent with Newbury and also with submissions made on behalf of
the Secretary of State in the recent case of Tarmac Heavy Building Materials
UKLtd v Secretary of State for the Environment, Transport and the
Regions unreported 6 July 19991. Mr Corner now makes the more
limited submission, which I unhesitatingly reject, that the facts in this case
were such that the legal issue could only be resolved in the Secretary of
State’s favour, so that there was no need for the matter to be referred back to
the Secretary of State. It follows from Newbury that the decision in the
first instance is that of the decision maker, in this case the inspector
appointed by the Secretary of State. The court will interfere with his
conclusion only upon the well-established grounds identified by Viscount
Dilhorne in Newbury. It was not appropriate for the judge to put himself
in the position of the decision maker.
1Reported at (2000) 79 P&CR 260
I would allow the appeal and quash the decision of the Secretary of
State. Since the judge did, however, purport himself able to decide the issue
of the lawfulness of the condition, a comment on his reasoning is necessary,
for, otherwise, that reasoning might stand as the proper approach to the
question of lawfulness. The judge stated at p7 of his judgment:
The change of use of the whole site would involve, therefore, the
change of use of the barn as well as of the listed building so that they could
be used within the range of uses permitted by the planning permission which, of
course, did include ancillary storage, but not independent storage. If this
total change of use was justified under the development plan only insofar as it
enabled the preservation of the listed building in order to serve the
objectives of planning policy to preserve and enhance such buildings in their
settings, it seems to me, that the requirements of work, which achieved that
objective, must obviously and clearly relate to the development.
In holding, on the material before him, that the condition complied
with Newbury principles, the judge placed reliance upon the fact, not
considered by the inspector, that the permission for change of use related to
the site, which included the barn, as well as Newton Hall. That may, in an
appropriate case, be a relevant consideration, but it does not address
the basic question of whether the change of use, which did not
involve a change of appearance of the listed building, could lawfully be made
dependent upon the demolition of the ancillary building. It is a different
requirement from a landscaping condition, though I would also see limits to the
extent to which a change of use of a building could be made conditional upon
landscaping arrangements in its grounds.
However, on more general grounds, I consider the judge’s approach,
as stated, to be contrary to Newbury. It reflects the approach of the
local planning authority, which was followed by the inspector. The written
submissions do not comply with the Newbury principle. The submission is
summarised in the last but one paragraph of the council’s document in this way:
The appeal proposal will, if allowed, cause harm to the character
and setting of the listing building by allowing the change of use without a
major part of the compromise on which the planning permission was granted. It
will allow those negative elements of the conversion to remain unbalanced with
the enhancement considered necessary to preserve the setting of Newton Hall.
That approach I consider to be contrary to the Newbury
principle, for the reasons already given.
I would add that, in a belated attempt to justify the decision of
the Secretary of State, Mr Corner has referred to paragraphs, within the
written submissions to the inspector, dealing with car parking. These are not
mentioned either by the inspector or by the judge when he upheld the decision.
The written submissions include a description of the car-parking arrangements
that, by way of condition, the company were required to make upon the change of
use. That description is followed by the paragraph:
The local planning authority takes the view that the front part of
the barn dominates the approach to Newton Hall from the main entrance. Its
demolition will enhance the character and setting of the listed building. This
will in part outweigh those aspects of the change of use that have had a
detrimental effect on the setting, such as the car parking. The result is the
preservation of the setting of Newton Hall.
Because the inspector’s decision was defective in its reasoning, as
already stated, that reference cannot have the effect of permitting the
decision of the Secretary of State to be upheld.
However, when looking at the matter on its merits, there are
further reasons why car parking is entitled only to limited weight. The
car-parking requirement was by way of condition. The reason for that condition
is stated as follows: ‘to ensure adequate provision of car parking on site
without detracting from the appearance of the site and the setting of the
listed building’. There is no suggestion that the car parking has an adverse
effect upon the setting of the listed building. Second, the point was made as a
further example of the quid pro quo approach, which, in my judgment, is
contrary to the Newbury principle. Third, I would add that, in any
event, I have grave doubts as to whether two apparently unrelated
questions, the demolition of a building in one location, and the
provision of car parking in another, can be said fairly and reasonably to
relate to each other. On the facts of this case, I have great difficulty in
seeing how the condition that the council sought to impose did fairly and
reasonably relate to the development to be permitted.
I have made those further remarks in response to the judge’s
approach to the question as reasoned in his judgment and in deference to the
helpful submissions of Mr Corner on the point. However, it must be repeated
that it was wrong in this case for the judge to take upon himself a
consideration of the merits as he did. The decision as to the lawfulness of the
permission is that of the Secretary of State on the basis stated in Newbury.
AULD LJ: I agree and add only a few words. Circular 11/95
includes among the six requirements it recommends for the imposition of a
condition to a planning permission: (1) necessity, in the sense that planning
permission would have to be refused if it were not imposed; and (2) relevance
to the development permitted as well as to planning considerations generally.
Assuming satisfaction of all the other requirements recommended in
the circular, it is plain that there will often be overlap in these two
requirements. A planning authority cannot just arbitrarily refuse planning
permission if they are unwilling to grant it without the condition in question.
The necessity must arise either for general planning reasons, one of the other
requirements, or because the authority consider it relevant, say as an
amelioration of planning harm resulting from the development to be permitted.
The requirement of relevance, as expressed by Lord Scarman in the Newbury
case, at p621B-C, and broadly agreed by the other members of the appellate
committee, is whether a condition ‘fairly and reasonably relates to the permitted
development’. This requirement of relevance has been described by Mr Corner and
treated by the judge as one of law.
Relevance in many contexts may be a matter of law that the court is
as well or better qualified to determine than the decision maker. But, in
certain disciplines, such as planning, it is primarily one of judgment for the
decision maker. So, in a planning context, it is for the inspector, or the
minister, to apply his expertise and experience to matters of planning
judgment, and his weight in reaching a decision, albeit one susceptible to
challenge on Wednesbury grounds. This is clearly how their lordships in
the Newbury case regarded the requirement of relevance. There, the House
was concerned with the Secretary of State’s decision that a planning permission
was invalid because a condition of it was extraneous to the proposed use. Lord
Scarman, at p621B-C, said that the decision maker — there the minister, as the
ultimate decision maker on planning questions arising in the enforcement of planning
control — was the appropriate authority to determine whether a condition
‘sufficiently ie fairly and reasonably related to the permitted development’.
As Viscount Dilhorne said at p601D-E:
If in the circumstances of this case the condition imposed was
not, in the Secretary of State’s opinion, fairly and reasonably related to the
permission granted, the courts cannot interfere with his conclusion unless it
is established that he misdirected himself or reached a conclusion to which he
could not reasonably have come.
Whether, in the circumstances before this court, the condition in
question was relevant to the permission was therefore primarily a matter for
the inspector on the material before him. It was not open to the judge to
decide the question as purely one of law, as he did, thus removing the need to
consider the adequacy and rationality of the inspector’s reasoning. This is
especially important in a case like this, where, as the House of Lords has made
plain in the Newbury case, a condition of demolition in a change of use
case should only exceptionally be imposed.
As to the inspector’s reasons in his decision letter, I agree with
my lord that they are inadequate. First, the inspector did not correctly
identify the central issue in the case, namely whether, and in what way, the
condition of demolition related to the change of use of Newton Hall. The
question he posed in para 6 of his decision letter related more to the
requirements of general planning control than to the change of use, which requires
separate consideration. And, in para 9 of his decision letter, after touching
briefly upon the relevance of the condition to the permitted development, he
said nothing to indicate to what extent, if at all, he had regard to any
circumstances in the case bearing upon that requirement. He simply reverted to
the general planning consideration, the subject of a different requirement,
talking in general terms of the enhancement of the approach to the property
that the demolition would bring, not itself an incident of the development
confined, as it was, to change of use.
In short, it is not apparent from the inspector’s reasons that he
has properly identified or considered the central issue in the case, relevance
to the permitted development, namely the change of use, or such submissions as
were made to him on the point.
I therefore agree that the decision should be quashed for the
reasons my lord has given. In such rehearing of the matter as takes place, it
will be necessary for the decision maker to focus upon the extent to which, if
at all, the demolition of the barn relates to the change of use itself as
distinct from some overall planning gain resulting from the preservation of the
building or enhancement of its surroundings.
DYSON J: I agree.
Appeal allowed.
