Town and country planning–Proposed development to be carried out by local authority–Procedure under Town and Country Planning General Regulations 1976–Permission deemed to be granted on the passing of a second resolution by the authority–Plaintiffs’ motion for interim injunction to restrain authority from passing resolution which would result in ‘deemed’ planning permission for authority’s development –Such ‘deemed’ permission, which included provision for office accommodation, would be likely to prejudice the plaintiffs’ own proposals for office development–Various objections by plaintiffs based on alleged non-observance of procedural formalities rejected–Main argument that the procedure laid down in the relevant regulation implied that the development was to be carried out by authority itself, not by someone else–In present case it had been contemplated that a commercial developer would provide capital finance on a profit-sharing basis for authority’s development–Plaintiffs had shown an arguable case that scheme did not comply with the regulation–Principles governing interim injunctions as explained in American Cyanamid case applied–Injunction granted as balance of convenience was in favour of plaintiffs
In these
proceedings the plaintiffs, Sunbell Properties Ltd and Pinewood Homes, applied
for an interim injunction to prevent the defendants, Dorset County Council,
from passing a resolution the effect of which would be that permission would
then be deemed to have been granted for the comprehensive development of a site
in the centre of Bournemouth. This development was to include office
accommodation. The plaintiffs were interested in obtaining permission for
office development on that site and an adjoining site.
Sir Derek
Walker-Smith QC and John Male (instructed by Wilde, Sapte & Co, agents for
Baldocks, of Godalming and Rawlins, Davy & Wells, of Bournemouth) appeared
on behalf of the plaintiffs; Miss Elizabeth Appleby QC (instructed by Sharpe,
Pritchard & Co) represented the defendants.
Giving
judgment BROWNE-WILKINSON J said: This motion concerns two sites in central
Bournemouth. The first (which I will call ‘the red area’) is a site in which
there are a number of properties in which both the plaintiffs have substantial
interests. The plaintiffs have applied to Bournemouth Borough Council for
planning permission to develop the red area for office purposes. Their
application not having been dealt with by the borough council within the
statutory time-limit, it was deemed to have been rejected, and the plaintiffs
have appealed to the Secretary of State and a public inquiry is to be held,
probably starting in January 1980.
The second
site is near the railway station and is known as the Bournemouth Central
Station area (I will call it ‘the grey area’); it adjoins the red area. The
defendants, Dorset County Council, are concerned that the grey area should be
comprehensively developed as a travel interchange area with incidental services
and with commercial offices. The county council own certain land in the grey
area. The first plaintiff also owns a substantial amount of land in the grey
area for which it has very recently applied for planning permission. The rest
of the grey area belongs to other persons.
The office
accommodation on the grey area proposed by the county council is for an area of
some 218,000 sq ft. The south-east Dorset structure plan, which has been
approved by the Secretary of State despite objections from the plaintiffs,
provides for 1,020m sq ft of office space in the Lansdown Central Station area,
which includes the grey area. The structure plan does not contemplate office
development on the red area.
The county
council are proceeding to obtain planning permission for the development of the
grey area. Being themselves the local planning authority, they are seeking to
use a statutory procedure for obtaining deemed planning permission, and I must
first give an outline of that procedure.
The Town and
Country Planning General Regulations 1976 modify the general procedure laid
down by the Town and Country Planning Act 1971. Regulation 3 modifies the
normal statutory provisions in relation (a) to development ‘. . . by a local
authority being a local planning authority . . . of land within their area’ and
(e) ‘development of any land which is vested in a local planning authority and
which is situated within their area . . . .’
As part of the land in the grey area is not vested in the county
council, the special procedure can only apply if the development is to be ‘by’
the local authority. Cases where the land is to be developed by a local
authority are dealt with by regulation 4, which is expressed to apply to a
development which they (that is to say, the local authority) propose to carry
out. Under regulation 4 the procedure is as follows. First, under paragraph (1)
it is said:
. . . where
the authority require a permission for development which they propose to carry
out . . . and where they resolve to seek permission for the carrying out of
that development
the provisions
of regulation 4 are to apply.
The resolution
to seek permission for the carrying out of development has been called ‘the
first resolution.’ Once the first
resolution has been passed, by paragraph (2) the local authority has to give
certain notices in writing, and it is common ground that those notices have
been given in this case. Paragraph (3) requires notice of the resolution to be
placed in Part I of the register of planning applications, and that has been
done in this case. Then paragraph (5) provides that on the expiry of a period
(which has, in fact, expired):
. . . the
authority may, unless the Secretary of State has required them to make an
application to him for permission for the development described in the
resolution referred to in paragraph (1) of this regulation, resolve, by a
resolution which is expressed to be passed for the purposes of this paragraph,
to carry out that development; and, subject to the provisions of regulations 8
to 11, on the passing of such resolution permission shall be deemed to be granted
by the Secretary of State for that development.
Accordingly, on
passing the resolution under paragraph (5) of regulation 4, a deemed planning
permission is at once obtained, unless the Secretary of State has called in the
application. The resolution referred to in subparagraph (5) has been called
‘the second resolution.’
Then
regulation 6 provides:
Where an
authority proposing to seek permission for the carrying out of development
under regulation 4 have made arrangements under section 101 of the Local Government
Act 1972 for the
provisions of the regulation 4 shall apply as though references to the passing
of a resolution by the authority to seek permission were references to the giving
of written notice to the authority by that officer that he proposes to seek
permission and references to a resolution to carry out the development were
references to written notice given to the authority by that officer that the
development is authorised pursuant to regulation 4(5).
During the
course of this year numerous committees of the county council have considered
the proposed scheme for the grey area and have resolved to apply for the
necessary planning permission. On the basis that the function of applying for
such permission under regulation 4 has been validly delegated to the county
solicitor, on July 5 1979 notice of an application for planning permission by
the county council was sent to Bournemouth Borough Council with copies to the
planning officer of the county council. Notice of the application was given to
both the plaintiffs and no point arises on this. Objections of a technical
nature, similar to those urged before me, were made by the first plaintiffs.
The second plaintiffs made no observations. The Secretary of State has not as
yet called in the application and the defendant county council has called a
meeting for Friday, October 19 (that is to say, tomorrow) to consider and, if
thought fit, pass the second resolution, namely, a resolution to carry out the
development on the grey area. If such resolution is validly passed, planning
permission for development of the grey area by the county council will be
deemed to have been granted.
The plaintiffs
claim an interim injunction restraining the county council from passing such
resolution, claiming that their prospects of success on their pending appeal
relating to the red area will be prejudiced by the existence of a planning
permission for 218,000 sq ft of office space on the grey area. The plaintiffs
say that the passing of the resolution would be ultra vires on two main
grounds: first, that there has been no strict compliance with the formalities
prescribed in the first resolution–that is to say, the resolution to seek
planning permission referred to in regulation 4(1); secondly, the procedure in
regulation 4 does not apply to this case at all, since the county council is
not proposing itself to carry out the development, since, they say, the land,
or the commercial part thereof is to be developed by a commercial developer.
It must be
borne in mind that this is an application for an interim injunction and must
therefore be approached on the basis laid down by the House of Lords in the case
of American Cyanamid Co v Ethicon Ltd [1975] AC 396. The
plaintiffs, therefore, are required to show only an arguable case fit to go to
trial. In the course of the argument it sometimes seemed to me that I had to
decide the whole case on the material now before me. That is not so: if the
plaintiffs have an arguable case and (as appears to be common ground) damages
would not be an adequate remedy to either party, the decision whether or not to
grant an interim injunction depends on the balance of convenience.
First then,
have the plaintiffs shown an arguable case on their first ground, namely, that
the formalities of the first resolution have not been complied with? On this point the case is fundamentally
different from that which the plaintiffs originally came to make. The
plaintiffs asked to be supplied with a copy of the first resolution and the
county council replied in these terms:
The County
Council are proposing to carry out the development under regulation 4 of the
General Regulations, and I set out below the Minute adopted by the Policy and
Resources Committee at their meeting on February 8 1977 which is ‘the first
resolution.’
The letter
then sets out the minute, which reads as follows:
That the
power to seek permission for development on behalf of the County Council under
regulations 4 and 5 of the Town and Country Planning General Regulations 1976
be delegated to the County Solicitor.
Not
surprisingly, the plaintiffs thought that such a resolution was wholly
insufficient to satisfy the requirements of regulation 4(1). Indeed, Miss
Appleby for the county council conceded as much as soon as the motion was
opened. However, the county council now argue that the resolution I have just
read constituted a valid delegation to the county solicitor for the purposes of
regulation 6.
On July 5 of
this year the county solicitor wrote to the borough planning officer as
follows:
I am
authorised by the County Council to seek approval for development they are
proposing to carry out, and I therefore enclose herewith two copies of the
proposals relating to the above development. Please ensure that in accordance
with regulation 4(3) the necessary information is placed in Part I of the
Register of Planning Applications kept by you.
There then
follows certain other matters, and it ends, ‘Yours faithfully’; then there are
initials in manuscript ‘DSH’ and underneath the initials in typewritten script
‘(signed) John Simmonds.’ I interpose to
say that John Simmonds is the county solicitor.
The enclosure
with that letter, which bears on its face the fact that a copy was also sent to
the county planning officer, is a completed form which is headed ‘Proposal by
Local Authority for Deemed Permission for Development.’ It describes the land and gives certain
particulars, and then, in paragraph 14, reads as follows:
I hereby seek
deemed planning permission or approval in accordance with the details given in
this proposal and described in the accompanying plan and associated documents
–and then a
signature appears, ‘John Simmonds,’ and then in typescript ‘County
Solicitor’–and then it goes on, ‘On behalf of Dorset County Council.’
The county
council contend that by virtue of regulation 6 the sending of this letter, plus
the enclosure, constitutes compliance with the requirements of regulation 4(1).
Sir Derek, for the plaintiffs, contends otherwise on a number of grounds.
First, he says, that there was no valid delegation of the functions to the
county solicitor, since only a limited function relating to the first
resolution was delegated, and regulation 6 requires the delegation of the
functions relating to both the first and the second resolutions. He points to
the fact that regulation 6 modifies the wording of regulation 4 in relation to
both resolutions. I do not accept this submission. Regulation 6 contemplates
delegation of the relevant functions, and in my judgment the relevance referred
to is related to the modifications thereinafter mentioned in regulation 6–that
is to say, the machinery is modified to the extent that the functions are
delegated.
Next, Sir
Derek says, probably correctly, that the letter enclosing the planning
application was not actually signed by the county solicitor but only has his
name typed on it. Regulation 6 does not require the notice to be signed by the
delegated officer and I see no reason to import any requirement of actual
signature. Moreover, the planning application itself is signed by the county
solicitor and to my mind is by itself sufficient notice. Finally on this point,
Sir Derek says that regulation 6 requires the notice to be given to the
acquiring authority, that is to say, to the county council, whereas the letter
is directed to the Bournemouth Borough Council. Copies of the letter and its
enclosure were sent to the county planning officer and that, in my judgment,
was proper service on the county council if such service was required.
Therefore, I
do not think that the plaintiffs have shown any arguable case that the
formalities required by regulation 4 have not been duly complied with.
The plaintiffs’
second main argument is much more formidable. Again, the case has changed
somewhat during the course of the hearing. The basis of the argument is that
the deemed planning permission procedure laid down in regulation 4 only applies
where the local authority requires a planning permission for development which
they propose to carry out. The procedure does not therefore apply if the
development is proposed to be carried out by someone else. The
community land committee which referred to the fact that Taylor Woodrow had
already been offered, and accepted, appointment as the county council’s
developer. This, said the plaintiffs, coupled with the facts that the office
development is a commercial development and that Taylor Woodrow has acquired
land in the grey area, showed that the proposed development was not to be
carried out by the council but by a commercial developer.
The county
council put in a large number of minutes of various of its committees. From
these the following is to be deduced:
(1) The scheme in its present form has been under
consideration by a number of different committees from at least January 1979.
(2) Initially the scheme, or at least the
necessary land acquisitions, was to be financed under the Community Land Act.
(3) That in March 1979 it was envisaged that part
of the financing was dependent upon financial contributions from developers. A
confidential report from the chief executive made in March of this year reads
as follows:
Having regard
to the multiplicity of ownerships of land involved in the redevelopment of the
Central Station Area, the County Council have decided that Community Land Act
powers should be used to effect the land assembly. A financial appraisal of the
scheme indicates, that, dependent on adequate capital contributions by
developers of the site and speed of implementation, it should be possible to
secure an annual cash flow from the commercial development within the time
required, sufficient to satisfy the criterion of the Department of the
Environment for the issue of loan sanction.
If developers
were to provide financial capital contributions to the development they must in
return have been seeking to take some profit from the development.
(4) In May 1979 central government informed the
county council that the Community Land Act powers could not be used except in
exceptional circumstances and that the present case was unlikely to be
considered exceptional.
(5) Following the removal of the likelihood of
the land acquisition being financed under the Community Land Act, in June and
July of this year the local authority committees decided to go ahead with the
scheme, financing the land acquisitions by loans from the county funds.
(6) The minutes after May 1979 disclose no
discussions of any kind relating to the financing by the county council of the
construction works necessarily involved with the development of the land by the
county council. Taylor Woodrow’s position as county council developers is
treated as still subsisting: see the minute of June 6 which I have read.
(7) The minutes do not disclose any information
as to the basis on which Taylor Woodrow were offered the position as
developers. Although negotiations with Taylor Woodrow have taken place, I was
informed that no detailed agreement has been reached between Taylor Woodrow and
the county council.
The county
council evidence states that the county council consider it important that the
whole of the grey area should be developed as one and that they intend to carry
out this development themselves. They say they will acquire any land of Taylor
Woodrow in the grey area, and they also say this:
The Council
do not employ sufficient staff to undertake the works involved in such a
development and accordingly have to look outside their own staff resources for
a suitable agent to act on their behalf.
Then, after
referring to the appointment of Taylor Woodrow as the county council
developers, they go on:
At all times
the Defendants will be in sole control of the development and the detailed
plans and the carrying out of the development, and in no way will they delegate
control to a developer.
Finally, Miss
Appleby told me on instructions that following the demise of the Community Land
Act powers the county council were no longer considering any scheme involving
finance provided by developers in return for a share in the profits and, to my
mind rather surprisingly, that no consideration had been given by the
committees as to how the construction works were to be financed.
Regulation 4
obviously raises certain difficulties. In what circumstance can one say that
the development is to be carried out by the local authority? Plainly, regulation 4 must cover a case where
the development is carried out by the local authority by direct labour; equally
it must cover a case where the local authority, as building owner, employs
contractors to build according to the local authority’s plans. At the other
extreme, as at present advised it would seem to me not to cover a case where
the local authority granted building leases of parts of the area to developers
who, subject to overall guidelines, could develop in accordance with their own
plans and would take the profits. But between these extremes there are an
infinite number of possible arrangements which could be reached between the
county council and Taylor Woodrow in this case.
Happily it is
not necessary for me to grapple with these questions of degree, because the
county council have accepted that a scheme under which a commercial developer
took a share in the profits of the development (as opposed to a fixed
remuneration) would not fall within regulation 4. On this basis, I think the
plaintiffs have shown an arguable case that when the application for planning
permission was made in July of this year, the scheme then in mind was not a
development of the whole site by the county council alone. There is evidence
that before the withdrawal of the Community Land Act power Taylor Woodrow had
been appointed developers, and the capital contributions from developers were
to provide part of the financing. After the demise of the Community Land Act
financing, new arrangements were discussed for financing land acquisitions, but
Taylor Woodrow’s appointment as developer remained and the minutes disclosed no
discussion of any alteration either in the financing of the building and
construction works or the basis on which negotiations with Taylor Woodrow were
to proceed. Accordingly, whatever may have been the intentions of the officers
of the county council, on the basis of whose instructions Miss Appleby told me
the current position, it seems to me at least possible that at the trial the
plaintiffs will be able to establish that in July 1979 it was still
contemplated that Taylor Woodrow would provide capital finance on a
profit-sharing basis–in which case, it is common ground, regulation 4 would not
have been applicable.
I think therefore
on the facts before me, which I emphasise are only interim facts, the
plaintiffs have shown an arguable case which it is possible will succeed at the
trial. For American Cyanamid purposes, that is all that is necessary for
them to show. I come then to the balance of convenience.
I will first
consider the matter apart from the plaintiffs’ interest in the red area, since
it is submitted with some force that their interest in the planning status of
the adjoining red area does not give them any legal locus standi in
relation to the planning permission on the grey area. Looking at the first
plaintiffs’ interest in the grey area alone, if the second resolution is passed
tomorrow there would be an apparent planning permission affecting the
plaintiffs’ land, which would debar consideration of the plaintiffs’ own
application for planning permission and effectively sterilise its use for other
development until the validity of the county council’s actions is determined.
On the other hand, the county council are anxious to get ahead with their
scheme over the whole grey area, including the public services traffic
interchange and, for that purpose, need planning permission. An injunction will
delay this. Moreover, the plaintiffs have been guilty of slight delay in bringing
this motion, but so far as I can see the defendants have not been prejudiced by
the delay, save in
efficiently.
On balance, I
think the greater inconvenience will be suffered by the plaintiffs. It is true
that the planning permission deemed to be granted under paragraph 4 is limited
to a permission for the county council itself to develop, but the difficulties
of disentangling who is developing at a later stage would be very considerable
indeed. Since it is admitted that neither detailed plans nor finance have been
prepared for the county council’s scheme at this stage, obviously there must be
some time-lag before effective work can be done. Moreover, for myself, I
entertain considerable doubts whether the second resolution for the purposes of
regulation 4(5) would, or could, properly be passed at the present time. The
regulation 4 procedure is a strange one in that the local authority is made a
judge in its own cause, that is to say, it decides its own planning
application. The final stage is a resolution by the local authority to carry
out the development. As at present advised, I do not think Parliament intended
such a resolution to be passed simply for the purpose of getting planning
permission, but assumed that a responsible local authority would not pass a
resolution to carry out the works unless and until satisfied that the
development could be carried out. At present no consideration has been given to
the question how the construction work (as opposed to the land acquisition) is
to be financed. From the minutes I am not sure to what extent the members of
the various committees appreciate that financing the scheme from developers,
based on profit sharing, is not possible if the regulation 4 procedure is
adopted. I have doubts whether a second resolution would in any event be passed
if the true position, namely, that no finance for the construction works has
yet been worked out, were appreciated.
If, in
considering the balance of convenience, it is legitimate for me to take account
of the red area, the balance of convenience would tip overwhelmingly in favour
of the plaintiffs. Their chance of success in an appeal relating to office
development must be prejudiced by the existence of an apparent planning
permission on adjoining land absorbing all the proposed office space for the
area. True, the plaintiffs have to overcome the difficulty of not having land
within the structure plan designed for office use, but a planning permission on
the grey area would present them with even greater difficulty.
It would, in
my judgment, be better if the plaintiffs’ and the county council’s schemes
could together be considered by the Secretary of State on an even footing,
rather than one of the schemes having the advantage of an apparent planning
permission.
For these
reasons I propose to grant an injunction against the passing of the resolution
under regulation 4(5). I will consider the form of the injunction. I will also
direct a speedy trial if either party desires it.
