Town and country planning — Planning condition — Whether subject property subject to a condition that its occupation is limited to a person solely or mainly or last employed in the locality in agriculture
On May 31 1977
the second defendant, Mr Cook, submitted an application for planning permission
for a proposed dwelling on land described as ‘West Fen Lane, Stickney, Boston,
Lincs’ on OS sheet 90/6 Plots 9 and 10. The location of the proposed dwelling
inside the application form was stated as ‘Stickney OS XC:6. Fields 9 and 10
(part)’. On October 27 1977 the fourth defendants, East Lindsey District
Council, granted outline planning permission to erect a dwelling and garage in
connection with agriculture. The location of the development was stated as OS
sheet no 90.6, field no 10 pt, grid reference no 534450 358580. The permission
included the words ‘The occupation of the dwelling shall be limited to a person
solely or mainly employed, or last employed, in the locality in agriculture
defined in Section 290 of the Town and Country Planning Act 1971, or in
forestry or dependant of such a person residing with him (but including a widow
or widower of such person)’. On November 30 1977 an application was submitted
to the fourth defendants in respect of the reserved matters accompanied by a
drawing showing in a block plan the proposed dwelling located on enclosure 9 of
the OS plan and immediately to the west of enclosure 10; approval to the
reserved matters was given on December 2 1977 stating the location of the development
as in the outline planning permission. As a result of the approval ‘The
Paddocks’ was constructed about 90 ft west of the location approved by the
fourth defendants and wholly within enclosure 9. By a conveyance dated December
10 1988 the plaintiffs, Mr Stephen Colin Handoll, Mrs Margaret Charlotte
Ginette Handoll and Mrs Muriel Hazel Suddick, acquired the property from the
second and third defendants, Mr and Mrs S J Cook. On the trial of a preliminary
issue in a consolidated action brought by the plaintiffs against the
defendants, whether The Paddocks was subject to the planning condition imposed
by the fourth defendants, the plaintiffs contended that the agricultural
occupancy restriction did not blind The Paddocks because it was not a bungalow built
pursuant to planning permission being built on land away from that in respect
of which the planning permission was to operate.
that the departure considered in Kerrier District Council v Secretary
of State for the Environment. The Paddocks was built without permission. In
that situation the permission ought not be treated as a nullity and that being
so there was no reason why the occupancy restriction should not be enforceable.
This was a
trial of a preliminary issue arising in consolidated actions brought by the
plaintiffs, Stephen Colin Handoll, Mrs Margaret Charlotte Ginette Handoll and
Mrs Muriel Hazel Suddick, against the first defendants, Warner Goodman &
Streat, the second and third defendants, Mr and Mrs S J Cook, and the fourth
defendants, East Lindsey District Council, ordered by Master Murrow on October
16 1990.
Michael
Michell (instructed by Tinn Thimbleby, of Spilsby) appeared for the plaintiffs;
Graham Machin (instructed by Browne Jacobson, of Nottingham) represented the
fourth defendants; the first, second and third defendants did not appear and
were not represented.
The following
cases are referred to in this report.
Kerrier
District Council v Secretary of State for the
Environment (1980) 41 P&CR 284; [1981] JPL 193, DC
R v Basildon District Council, ex parte Martin Grant Homes Ltd (1986)
53 P&CR 397
Giving
judgment, MERVYN DAVIES J said: I have to decide a preliminary issue in
a consolidated action. However, the issue is tried only as between the
plaintiffs and the fourth defendants in the consolidated action. The other
defendants have agreed, as I understand, to be bound by any finding on the
preliminary issue. The three plaintiffs are Mr Stephen Colin Handoll, Mrs Margaret
Charlotte Ginette Handoll and Mrs Muriel Hazel Suddick. The plaintiffs own
5.183 acres of land at Stickney, Lincolnshire, together with a bungalow and
outbuildings built thereon called ‘The Paddocks’. They acquired the property by
a conveyance dated December 10 1984 in which Mr and Mrs S J Cook were the
vendors. The first defendants in the consolidated action are Warner Goodman
& Streat. They are the solicitors who acted for the plaintiffs when the
property was bought. The second and third defendants are the Cooks. The fourth
defendants are East Lindsey District Council. The trial of the preliminary
issue was ordered by Master Munrow on October 16 1990. In brief, the question
is whether the land that has been conveyed to the plaintiffs is subject to any
restriction imposed by the district council whereby occupation of the land is
limited to persons engaged in agriculture. The actual terms of the preliminary
issue as set out in the master’s order are as follows:
Whether the
property known as the piece or parcel of land situate in the parish of Stickney
Lincolnshire being number 9 on the sheet Xc6(1904) on the Ordnance Survey Plan
containing 5.183 acres or thereabouts together with the messuage or dwelling
house and outbuildings erected thereon or some part thereof and known as The
Paddocks, West Fen Lane, Stickney aforesaid is subject to any restriction
imposed by the East Lindsey district council or otherwise whereby its
occupation is limited to a person solely or mainly employed or last employed in
the locality in agriculture as defined by Section 290 of the Town and Country
Planning Act 1971 or in forestry or a dependant of such a person residing with
him (but including a widow or widower of such person).
The Paddocks
was built by the Cooks in 1978. On May 31 1977 Mr Cook, acting by his architect
Mr Daubeny (since deceased), submitted an application for planning permission
on the appropriate form. Exhibit DGB1 to the affidavit of Mr D G Brewster,
sworn on February 7 1992, is a copy of the application. The application shows
on its front page that permission or approval was sought for land described as
‘West Fen Lane, Stickney, Boston, Lincs’ OS sheet 90/6 plots 9 and 10. Inside
the application form one is required to state ‘Location of proposed dwelling’.
That is given as ‘Stickney OS Xc:6. Fields 9 and 10 (part)’. Para 6 of the
application form refers to a plan submitted with the application being Plan
770/5/77/B (hereinafter called ‘the application plan’).
An outline
planning permission was forthcoming from the district council. It is dated
October 27 1977. It gives as particulars and location of the development
submitted in these terms:
Outline
Application for permission to erect a dwelling and garage in connection with
agriculture and for vehicular/pedestrian access at West End Lane, Stickney.
Location of development: — OS Sheet No. 90.6, Field No 10pt Grid Reference No
534450 358580
It is to be
noted that this permission refers to field no. 10pt, whereas the application
referred to ‘Plots 9 and 10’. The permission stated that the subsequent
approval of the district planning authority was required as respects some such
matters as siting, design landscaping etc. The permission also included the
words:
3. The
occupation of the dwelling shall be limited to a person solely or mainly
employed, or last employed, in the locality in agriculture as defined in
Section 290 of the Town and Country Planning Act 1971, or in forestry or
dependant of such a person residing with him (but including a widow or widower
of such person).
I need not
refer to the other provisions of the permission.
On November 30
1977 an application was submitted to the district council as respects the
matters which had been reserved in the outline planning permission. In this
application the location of the land was simply referred to as West Fen Lane,
Stickney, Boston, Lincs, grid reference 534450 358580. The application was
accompanied by
elevations of the proposed bungalow and as well, in the bottom half of SJC3:
(i) a block plan showing the bungalow located in enclosure 9 of the OS plan and
immediately (as I see it) to the west of enclosure 10, and (ii) at the top of
SJC3, a sketch which appears to show the land the subject of the application as
being in part on enclosure 9, in part in enclosure 10 and in part in enclosure
11. Approval of the reserved matters was forthcoming on December 2 1977. The
approval is part of exhibit ‘SPGF2’. Therein the ‘location of development’ is
stated to be (as in the outline planning permission) ‘OS sheet No 90.6 Field No
10pt Grid Reference 534450 358580’. The restriction as to agricultural
occupancy is repeated.
With this
December approval received it seems that the building of The Paddocks went
ahead. It is now realised that the bungalow was not being placed on the
location suggested in the application plan or by the application form or on the
locations shown in SJC3. Evidence was given by a chartered surveyor, Mr
Christopher Job [FRICS]. Mr Job produced ‘Plan 1’. Plan 1 reproduces the 1904
OS map so as to show the immediate locality including enclosures 9, 10 and 11.
The bungalow is, of course, not shown because it was not there in 1904. By
reference to an enlargement — also on plan 1 — and by the use of transparent
overlays Mr Job drew attention to some features referred to in the application
plan and the other planning documents that I have mentioned:
(a) Overlay 2 shows that the thick-hatched square
on the application plan is in part in enclosure 9, in part in enclosure 10 and
in part in enclosure 11. Looking at the position of The Paddocks as shown on
the enlargement one sees that The Paddocks has been built outside the
thick-hatched square on the application form;
(b) Overlay 3 shows the grid reference already
mentioned. It is in enclosure 9 about 48ft north of the (original) buildings
shown on the 1904 ordnance survey plan and about 27ft from the nearest point of
the boundary of enclosure 10;
(c) Overlay 4 shows the location of the bungalow
as built and its location ‘on the Block Plan being part of the Drawing
770/5/77/B . . . ‘. I think that the reference to 770/5/77B is a mistaken
reference for 770/5/77C because it is in the C plan that there is a ‘block
plan’. However that may be, it is clear from the overlay and from Mr Job’s
cross-examination that the bungalow is about 90ft somewhat westerly of the
location as approved by the district council; and it is plain that, as the
bungalow now stands, it is wholly within enclosure 9.
Mr Michell
appeared for the plaintiffs. He submitted that the agricultural occupancy
restriction is not binding on The Paddocks. The restriction would affect, he
said, a bungalow built on land for which planning permission was given. But The
Paddocks is not a bungalow built pursuant to any planning permission. It has
been built on land away from that in respect of which the planning permission
was to operate. He accepted, as I understand, that meant that The Paddocks was built
in breach of planning control. Since the limitation period for enforcing
planning control has passed, the bungalow may remain in being; but as such it
is not, he said, affected by the occupancy restriction because that restriction
is a term of a planning permission that has no relevance to The Paddocks. In
other words, The Paddocks would have been subject to a restriction if built in
the right place, but is not subject to a restriction now it has been built in
the wrong place.
Mr Machin,
appearing for the district council, submitted that the occupancy restriction
binds The Paddocks. He drew attention to the crude and inaccurate features of
the application plan leading to difficulties in ascertaining exactly what plot
was intended by the district council as the approved plot for a new building.
But, he said, even if the bungalow was built about 90ft to the west of the
approved location one must take account of several considerations: (a) in the
rural context and the 5.183 acres extent of enclosure 9 a removal of 90ft was
not a substantial alteration of the planning approval; (b) such change of
location was without any planning significance; (c) the bungalow built is
exactly as to construction the same as that approved by the district council;
(d) Mr Cook, when building the bungalow, proceeded on the footing that he was
implementing the planning permission; and (e) the district council were, it
seems, satisfied as to the building going up on the site that it now occupies:
see the council’s letter dated December 20 1978 in exhibit SJC3. In this
connection see R v Basildon District Council, ex parte Martin Grant
Homes Ltd, (1986) 53 P&CR 397.
In the light
of such considerations Mr Machin said that the approach to the question of the
enforceability of the restriction was indicated by Kerrier District Council v
Secretary of State for the Environment (1980) 41 P&CR 284. That was
a case where planning permission was given for the erection of a bungalow, but
the bungalow was built otherwise than in accordance with the approved plan in
that a basement (not shown on the plan) was included within the bungalow. The
planning permission included an agricultural occupancy restriction. At p287
Lord Lane CJ said:
It seems to
us that there is another and perhaps equally important question. Can a planning
authority enforce a condition subject to which planning permission has been
granted even though the building as built does not comply with the approved
plans?
And at p288
the Lord Lane says:
We approach
the question first as a matter of principle. The reasoning of the Secretary of
State comprises four steps: (1) the dwelling-house actually built differed
materially from that shown on the approved plan; (2) therefore, it was built
without planning permission; (3) therefore, the planning permission was never
implemented; (4) therefore, the condition never applied.
Step (1)
involves a finding of fact that does not appear anywhere in the inspector’s
report. It is the starting-point of the allegation of breach of natural
justice, to which we shall return briefly later. Step (2) is well established
law. Steps (3) and (4) involve, it seems to us, a non sequitur. When one
speaks of something being done without permission, it may mean one of two
things. It may mean that no permission has ever been granted at all, or it may
mean that permission has been granted but that what has been done does not
comply with that permission. The fact that something is done without permission
in the latter sense does not mean that the permission must be treated as a
nullity, and, if it is not a nullity, we see no reason why any condition
subject to which the permission has been given should not bite.
The error in
the Secretary of State’s reasoning may lie in his reference to the planning
permission never having been ‘implemented’. Implementation is not, as we
understand it, a term of art in this connection. In one sense, the planning
permission plainly was ‘implemented’ since without the planning permission the
house would never have been built at all. Having relied on the permission to
build a house, it would seem strange that the occupiers should not be bound by
the condition, particularly if it was by reason of their own default that the
plans were not complied with. If the house had complied with the plans, the
occupiers would have been bound by the condition. They can hardly be in a
better position because the house did not comply with the plans. Two blacks do
not make a white in this or any other branch of the law.
Mr Michell
said that Kerrier was to be distinguished because there the departure
from the terms of the planning permission was simply a matter affecting the
interior parts of a building built on the very site for which planning
permission was given, the departure being not of a very substantial nature. But
here, he said, there was not only a removal from the approved site of the
bungalow, but a removal of as much as 90ft. True it is that the departure here
from the terms of the planning permission is of greater degree than the
departure considered in Kerrier. But it seems to me that Lord Lane’s
words have as much force in the circumstances of the present case as they had
in the Kerrier case. I accept that The Paddocks was built without
permission. It was built without permission in the sense that a permission was
granted, but that what was then done did not comply with that permission. In
that situation I respectfully agree with Lord Lane that the permission ought
not to be treated as a nullity. That being so there is no reason why the
occupancy restriction should not be enforceable. Accordingly, I answer the
preliminary issue in the affirmative. I have not been asked to consider any
impact of the Land Charges Act 1925.
Declaration
accordingly.
