Town and Country Planning Act 1971–Applications for orders of certiorari and mandamus challenging refusal of planning authority to grant permission for development–Outline permission granted–Question as to whether application for approval of reserved matters under section 42(2)(a) had been made within time-limit of three years beginning with date of outline permission–Authority, whose attitude to development had changed, held that approval application was out of time, treated it as an initial full application, and refused it–Time-limit for application for approval expired on a Sunday–Borough council’s offices closed on Saturday and Sunday–Application handed in to official at offices on Monday–Held that, in view of closure of council offices on the Sunday, the time-limit had been complied with–Authority’s arguments to the contrary rejected and ‘astute’ use of time-limit criticised as ‘arbitrary’ and ‘unfair’–Judgment of some general interest–Orders of certiorari and mandamus granted to quash authority’s refusal and to require it to consider application for approval of reserved matters
This was an
application for orders of certiorari and mandamus, following leave given on an
application for judicial review, directed to the London Borough of Bromley in
respect of refusal of planning permission for development of a site at Oaklands
Court, Oakwood Road, Orpington, Kent. The application made to the planning
authority had been in the form of an application for approval of matters reserved
on a grant of outline permission. The authority decided that the application
for approval was, as such, a day out of time and that it should be treated as a
full application made for the first time. As so treated the authority refused
it in the light of their current planning considerations.
C J M Symons
(instructed by T G Baynes & Son, of Welling, Kent) appeared on behalf of
the applicants; P Ground (instructed by Herbert Smith & Co, agents for the
solicitor, London Borough of Bromley) represented the respondents.
Giving
judgment, SHAW LJ said: This is an application made pursuant to leave granted
on March 16 1978 for orders of certiorari and mandamus directed to the London
Borough of Bromley in respect of their refusal on July 15 1977 to grant planning
permission for the projected development of a site at Oaklands Court, Oakwood
Road, Orpington in Kent.
The site
consists of a block of flats with a number of private garages. The applicants
acquired the freehold title to the property some time about the beginning of
1977. They took with the title the benefit of outline permission for the
development in question. That permission had been granted by the borough as the
local planning authority on January 24 1974. The situation thus created was
governed by the provisions of section 42 of the Town and Country Planning Act
1971.
By subsection
(1) of that section ‘outline planning permission’ is defined as meaning
‘planning permission granted . . . with the reservation for subsequent approval
by the local planning authority or the Secretary of State’ of reserved matters
not particularised in the application.
Subsection (2)
provides that:
Where outline
planning permission is granted for development consisting in or including the
carrying out of building or other operations, it shall be granted subject to
conditions to the following effect–(a) that, in the case of any reserved
matter, application for approval must be made not later than the expiration of
three years beginning with the date of the grant of outline planning
permission. . . .
The remaining
provisions of section 42 are not immediately relevant.
The position
that thus develops from a grant of outline planning permission is that, if it
is intended to pursue the development to which it relates, application for
final approval must be made within the period prescribed. If so made, the
outline consent remains operative and effective in favour of those seeking to
pursue that development. In the present case it is common ground that the date
by which the application had to be made so as to preserve the outline planning
permission granted in 1974 was January 23 1977. That date fell on a Sunday. The
offices of the London Borough of Bromley were closed on that day as they were
also on the day before, namely, the Saturday. No responsible officer or
employee was available to be seen.
The applicants
had instructed a planning consultant, Victor Winston Morris, to prepare plans
to present to the planning authority. His services were not retained until
January 15 as the applicants had very shortly before become the owners of
Oaklands Court. He had to work fast, but he had got the plans ready and the
application for detailed consent filled out and completed by the Saturday,
which was January 22. It included the statement ‘outline consent given 24 1
74.’ At the foot of the application
there appears the signature of Mr Morris, who states that he signs on behalf of
the owner-applicants and there follows the date of the application in the form
’22 1 77.’
If that
application form with the accompanying plans had been lodged with the London
Borough of Bromley on that day, the planning consent given in January 1974
would have stood and, subject to the approval of any reserved matter, the
applicants would have been entitled as of right to proceed with the
development, so long as it was begun within two years of the final approval of
any reserved matters as required by section 42(2)(b)(ii).
Mr Morris knew
that on the day he had the applications ready there would be no one at the
offices where the affairs of the borough were administered. He has deposed that
‘as the council offices were shut I was unable to deliver and make the
application until Monday January 24.’ On
that day he went to the offices of the council and handed the application form
and plans to an official there. The form bears a date stamp of the borough
showing its receipt on January 24 1977.
It did not
come up for the consideration of the development control committee for a
substantial time thereafter. It was finally considered on July 5 1977. At that
stage the planning
they could prevent it. If they were bound by the outline permission given on
January 24 1974, they could not renege. Some acute person concerned with the
matter noticed that the date of receipt of the application pursuant to the
outline planning permission granted in 1974 was January 24 1977. On the face of
it, that was a day late by reason of the provisions of section 42(2)(a) of the
1971 Act. The planning committee accordingly held themselves entitled to treat
the application as a full application made for the first time in January 1977.
They considered it in the light of the then current planning considerations and
refused it. Notice of refusal dated July 15 1977 was issued to the applicants.
It is now
submitted on their behalf that the planning authority were not entitled to
treat the application in disregard of the planning permission given on January
24 1974. The argument was that the application form and the accompanying plans
could not on January 23 have been lodged with the local planning authority in
compliance with article 7(1) of the Town and Country Planning General
Development Order 1973 made by the Secretary of State for the Environment in
the exercise of powers conferred under the Act of 1971.
Article 7(1)
is in these terms:
Any
application made under article 5 or 6 of this order shall be lodged:–(i) where
the land in respect of which the application is made is in Greater London, with
the Council of the London borough in which the land is situate or with the
Common Council, as the case may be; (ii) where the land is not in Greater
London, with the council of the county borough or county district in which the
land is situate, and the authority with whom the application is lodged shall,
if necessary, transmit it to the local planning authority.
Article 7(2)
reads:
On receipt of
any such application the local planning authority shall send to the applicant
an acknowledgement thereof in the terms (or substantially in the terms) set out
in Part I of Schedule 2 hereto.
The word
‘lodged’ as used in the article is not defined. It suggests to me more than a
mere physical deposit at the council’s premises. It would appear to involve
depositing the relevant documents, which may be bulky and substantial, with
some responsible officer or employee of the local authority. This could not
have been done between the time the council offices closed on Friday, January
21 1977 and the time that they reopened on the following Monday. Counsel for
the respondent borough, however, relied on section 231 of the Local Government
Act 1972. Subsection (1) enacts that
Subject to
subsection (3) below, any notice, order or other document required or
authorised by any enactment or any instrument made under an enactment to be
given to or served on a local authority or the chairman or an officer of a local
authority shall be given or served by addressing it to the local authority and
leaving it at, or sending it by post to, the principal office of the authority
or any other office of the authority specified by them as one at which they
will accept documents of the same description as that document.
By subsection
(3) it is provided:
. . . the
methods of giving or serving documents provided for by [the foregoing
provisions] are in substitution for the methods provided for by any other
enactment or any instrument made under an enactment so far as it relates to the
giving or service of documents to or on a local authority. . . .
The assistant
borough planning officer of the respondent borough deposed to the fact that at
the town hall in Beckenham, which is the principal office of the London Borough
of Bromley, there is a letter box at the main entrance. So the documents could
have been addressed to the planning authority and sent by post or ‘left’ at the
town hall on the Sunday. If it had been posted on the Sunday it is improbable
that it would have reached the town hall before Tuesday, January 25.
If it had been
‘left’ at the town hall by dropping it in the letter-box at the main entrance
at any time from the evening of Friday, January 21 up till midnight on the
Sunday, it would not have been seen by any employee of the council until Monday
morning and it would then have been stamped with that day’s date as the date of
receipt. For all practical purposes the position would have been exactly the
same as that which resulted from Mr Morris’s visit on the Monday when he took
the documents there by hand. Indeed, if there were any difference, it would be
that he had the knowledge that the application had been placed in responsible
hands.
Now if section
231 applies, it offers a choice of methods of ‘giving’ documents to a local
authority. Apart from sending them by post, they can be ‘left at’ the principal
office. This cannot mean simply depositing the documents on the doorstep. Like
‘lodging’ them it must, in practical terms, involve leaving them with a
responsible officer or employee of the borough. If the sender chooses the
method of ‘leaving’ which is authorised as an alternative to posting under
section 231 of the Local Government Act 1972 (and he is entitled to adopt that
method if he is so minded) he cannot, in my view, be penalised or regarded as
in default if he ‘leaves’ the documents on the next following day that the
offices are open. The present applicants had until January 23 to ‘leave’ the
application for approval of any reserved matters. On that day they could not
leave them with anybody there. Dropping them in the letter box is not ‘leaving’
the documents any more than dropping them on the doorstep or the forecourt
would have been. So the Sunday did not count any more than the Saturday would
have done. Making allowances for the state of affairs at the town hall on the
Sunday, I would hold that Monday January 24 was ‘not later than the expiration
of three years beginning with the date of the grant of outline planning
permission’ on January 24 1974.
It is not
irrelevant to observe that the applicants and the planning authority were not
opposing parties in a litigious proceeding. The situation was administrative
and not contentious. It is not as though one party must gain at the expense of
the other if there is some relaxation allowed because of practical difficulties
or impossibilities. It is a little surprising, particularly as the planning
committee did not dispose of the matter until nearly six months afterwards,
that they were so astute about taking advantage of a few hours supposed
lateness in delivering the application. It was arbitrary and, in my view,
unfair.
While the
situation revealed in the history of this matter is not precisely analogous to
that considered in Pritam Kaur v S Russell & Sons Ltd [1973]
1 QB 336 or in Trow v Ind Coope (West Midlands) Ltd
[1967] 2 QB 899, it gives rise to the same kind of problem which is to be
resolved not by legislative hair-splitting but by such practical good sense as
is conducive to a just outcome. The lateness, if any, was de minimis,
and no legal consequence should be founded upon it.
In my
judgment, the order of certiorari should go to the London Borough of Bromley to
quash their notification of refusal of the planning application and also an
order of mandamus requiring the London Borough of Bromley in its function of
planning authority to consider the applicant’s application as one duly made in
pursuance of an outline permission within the period prescribed by section
42(2)(a) of the Town and Country Planning Act 1971.
KILNER BROWN J
agreed.
Orders of
certiorari and mandamus were accordingly granted with costs against the
borough. A stay of four weeks was granted to enable the borough to consider an
appeal.
