Outline planning permission — Former film studios site — Retail store and non-retail development — Approval of reserved matters to be sought within three years — Retail store built — Non-retail development not pursued within time-limit — Whether judgment for the developers — Undertaking by developers to council not to pull down existing studios pending full trial
The defendants, BWG, made two applications for outline planning permission for development of the Elstree Film Studios site. One scheme concerned redevelopment of the site to form a new studio complex, which would include a film museum, and for a retail store and other items (application 4). BWG were keen to press ahead with the superstore and so the second application was for that part of the development only (application 5). Outline planning permission was granted on application 4 subject to a number of conditions, in particular that it was subject to approval for the reserved matters, which had to be sought not later than three years from the date of the outline permission. Outline planning permission on the superstore (application 5) was also granted with a similar agreement as to the reserved matters. The store was presently trading, but the film studio site was moribund. BWG failed to apply for permission for the reserved matters (the “non-retail development”) within the stipulated period so that by virtue of section 93 of the Town and Country Planning Act 1990 that permission had entirely lapsed.
BWG now argued that they did not have to develop the studios and were free, if they wanted, to pull the buildings down. The agreement did not contain any express term requiring BWG to apply for approval of the reserved matters. BWG contended that once the permission lapsed then the “development” could never be lawfully carried out, although exactly the same works could be done if authorised by further permission. However, those works would not be “authorised” by the permission presently granted for under application 4. The council contended, inter alia, that there was an implied term that if the permission dropped away because application was not made in time then BWG would apply for fresh permission to develop in the manner contemplated by the original permission.
Held Council’s application granted that there should be an undertaking by BWG to take no action in relation to the non-retail property which would jeopardise the development in accordance with the permission granted in application 4 pending determination of the action.
1. With regard to the argument concerning the development, there was no purpose in the source of planning authority being one planning permission rather than another. The court had to have regard to the fundamental objective of the parties which formed part of the essential background factual matrix against which the agreement was to be construed. That objective related to the physical development to be carried out and to which evidence would be called at the trial.
2. As to the implied term, the court would say no more at the present interlocutory stage then if an application for reserved permission were not made within three years then BWG would do all such acts as were necessary (including making a fresh planning application) to implement a development as described in application 4 or otherwise to put the council in the position they would have been if the application had been made within that period.
Caroline Hutton (instructed by Nabarro Nathanson) appeared for the plaintiff council; David Keene QC and Paul Stinchcombe (instructed by Simmons and Simmons) appeared for BWG.
