Permission to erect house in area of outstanding natural beauty – Proper construction of condition expressed to enure for benefit of applicants only – Relevance of planning considerations generally to appeal directed to condition alone – Extent to which decision maker should follow earlier decisions in similar cases
In 1989 the applicants obtained planning permission to build a house on a remote site in the Tamar Valley, Cornwall, then designated as a special area of great landscape value. However, attempts to obtain mortgage finance were unsuccessful because the consent was expressed by condition to enure solely for the benefit of the applicants. In September 1994 the council refused their application to lift the restriction and they appealed to the Secretary of State for the Environment, pointing to two successful appeals affecting other sites in the immediate area (the comparable appeals) where such a condition had been lifted.
In the course of the appeal, and some 12 weeks the inspector’s visit, the Tamar Valley was designated an area of outstanding natural beauty. Relying partly on this, the Secretary of State dismissed the appeal. The applicants appealed contending that: (1) the Secretary of State had misconstrued the condition and so proceeded upon an error of law; (2) section 73(2) of the Town and Country Planning Act 1990 limited his consideration to the condition alone, thus precluding review of the wider considerations affecting the original grant; (3) there was no adequate explanation for reaching a decision different to those made in the comparable appeals.
Held The decision of the Secretary of State was upheld
1. The Secretary of State had misconstrued the condition in reaching the view that the completed house could be occupied by the applicants and no one else. Properly construed, the condition was fulfilled for all time once the applicants had built the house and gone into residence; that was because a subsequent change of residential occupier would not be a material change of use. The condition was thus distinguishable from a condition which specified a subclass of residential occupier in terms based on a material planning consideration. Thus construed, the wording of the condition operated to rebut the statutory presumption that the permission should run with the land: see section 75 (1) of the 1990 Act. However, establishing the error of law did not assist the appellants. The adverse decision proceeded upon the harshest possible interpretation of the condition. The case for that decision would have been even stronger if the condition had been construed correctly.
2. As to the second ground, the contention that the merits of a condition could be divorced from the planning considerations underlying the permission to which it was attached could not be sustained. Nor was such an approach intended by the requirement in section 73 (I) that the decision maker should "only" consider the question of the condition. Those words served simply to make clear that whatever decision was reached on the condition, the text of the permission itself should be left intact.
3. The third ground rested on the principle that decision makers should strive for a consistent approach: see North Wiltshire County Council v Secretary of State for Environment [1992] 3 PLR 113. While not creating binding precedents, earlier decisions on like facts were a material consideration, hence the need for adequate reasons for deciding otherwise. The reasons given by the Secretary of State were adequate in that they pointed to the supervening designation and indicated that the respondent was dissatisfied with the outcome of the comparable appeals. Furthermore, the benign construction now placed upon the condition in issue largely removed the prejudice which might otherwise have arisen from the allegedly inconsistent approach.
Robert Fookes (instructed by Foot Bowden, of Plymouth) appeared for the applicants; Christopher Katkowski (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
