Town and Country Planning Act 1971–Application by planning authority under section 245 to quash decision of Secretary of State discharging a condition attached to a planning consent–Condition required the widening of a carriageway in the interests of highway safety and extended to some land which was not in the ownership or under the control of the developers–It was submitted by the applicant authority that the Secretary of State erred in law in deciding that the condition was unlawful and also that he misinterpreted his legal powers under section 36(3)–It appeared that the amended application for permission included the widening of the carriageway, although there was some dispute as to whether it had been included at the insistence of a planning officer–The Secretary of State had held that the imposition of the condition was ultra vires on the ground that conditions could be imposed only in respect of land within an applicant’s control–He also held that the condition was bad on the broad ground that no payment of money or other consideration can be required when granting a statutory permission–Held by Farquharson J that the Secretary of State, although wrong on the first ground, had come to the correct conclusion on the second–In deciding that the condition was ultra vires on the first ground the Secretary of State had relied on section 30(1)(a) but had overlooked the effect of section 29–He had, however, correctly decided that the imposition of a condition requiring a developer himself to carry out or to fund a public function of a planning authority as a price of permission was unlawful–This was so even if the proposal was part of the planning application–The judge also rejected the argument for the applicants based on the Secretary of State’s alleged failure to give serious consideration to the exercise of his powers under section 36(3)–A number of authorities were considered including Hall & Co Ltd v Shoreham-by-Sea Urban District Council–Application to quash refused
This was an
application by City of Bradford Metropolitan Council under section 245 of the
1971 Act to quash a decision of the Secretary of State discharging a condition
attached to a planning consent given to developers, McLean Homes Northern Ltd,
to build new houses on land some 3 miles from Bradford city centre.
D Keene QC and
Charles Cross (instructed by Warren Murton & Co, agents for A R Sykes, City
Solicitor, Bradford) appeared on behalf of the applicants; John Laws
(instructed by the Treasury Solicitor) represented the first respondent, the Secretary
of State for the Environment; Harry Wolton QC (instructed by T L Green, Tarmac
Housing Division) represented the second respondents, McLean Homes Northern
Ltd.
Giving
judgment, FARQUHARSON J said: This is an application under section 245 of the Town
and Country Planning Act 1971 to quash a decision of the Secretary of State for
the Environment, contained in a letter dated May 16 1984, discharging a
condition attached to a planning consent given by the applicants, who are the
planning authority for the area with which I am concerned. By amended notice of
motion the applicants now rely on two grounds: first, that the Secretary of
State erred in law in deciding that the condition was unlawful; second, that he
misinterpreted his legal powers in deciding that he had either to allow or to
reject the appeal in toto and failed to appreciate that he could grant
permission under section 36(3) of the Town and Country Planning Act 1971 for
development on a reduced scale.
The proposed
development by the second respondents, to whom I shall refer as the developers,
was and is the subject of two separate applications. The two sites concerned
were contiguous with each other and bordered a road called Meadway, some 3
miles from the city centre of Bradford.
The first application,
numbered 05448, for the greater area of land, which throughout the time with
which I am concerned today was owned by the developers, involved a proposal to
build 160 dwellings. The smaller site, which was the subject of the second
application, numbered 05449, lay between the first site and Meadway.
At the time of
the application, and indeed at the time of the planning committee’s decision to
grant consent for the building of 40 houses which were the subject of the
second application, the site was owned by the present applicants. It was later
acquired by the developers between the date on which the consent was given and
the date of the appeal to the first respondent, the minister. Both applications
were submitted to the applicants’ planning committee on August 6 1982.
The proposed
development which was the subject of the two applications presented certain
problems because of the narrowness of Meadway. With access to Meadway from an
area containing 200 new houses the weight of traffic would increase
substantially, and objections were made by the highway authority for the area,
which were based on the inadequacy of that road. Accordingly, discussions took
place between the planning officers and the developers and in the result an
amended plan was submitted by the developers which covered both sites,
accompanied by a letter dated November 18 1982. That letter was in these terms:
In respect of
the above applications
which are of
course the two that I have already referred to
under Town
and Country Planning, please find enclosed amended plans incorporating a
revised drainage outfall to Royd’s Hall Beck and
and of course
this is the significant part
the widening
of Meadway by an additional one metre along the site frontage and through to
the junction with Manorley Lane.
It was evident
that that amendment regarding the widening of the road had emerged from the
discussions which had taken place between the parties and it is equally evident
from this covering letter, as well as from the plan itself, that that extension
was intended to form part of the application; it was the site upon which the
application was based.
The planning
authority had in fact required Meadway to be extended by one metre in width not
only along the frontage of the new development but also for an extended length
of the same road up to the junction with the Halifax Road. The extension of the
width of the road beyond the frontage of the development involved land which
was not in the ownership or under the control of the developers. For identification
purposes counsel has referred to that stretch of land as ‘the tongue’. The plan
submitted by the developers proposed a
identifying the area which is the subject of any planning application, and
those red lines included that part of the road surface of Meadway which had to
be extended.
On January 12
1983, plans having been submitted in November 1982, planning consent was given
for both developments, that is to say, both sites. The two consents were in
identical terms, save in so far as they referred to a different number of
units, and were expressed to be subject to the same conditions.
The particular
condition which was the subject of review by the minister, that is to say the condition
which he discharged and which in turn is the subject of the present
application, was condition no 4 and that was expressed in these terms:
Before the
dwellings hereby authorised are occupied, the highway improvements to Meadway,
ie the widening of the carriageway by one metre together with the associated
remedial works, shall be carried out in accordance with the submitted plans,
and to the satisfaction of the council.
At the foot of
the consent the reason given for that particular condition was that it was ‘in
the interests of highway safety’. Accordingly, the position at this time was
that the application included the proposed development of the houses on the two
sites; it also included within the delineation of the red lines on the plan the
extension of Meadway.
The developers
were dissatisfied with this and appealed by notice on June 9 1983 to the
minister against the imposition of that condition. The grounds upon which they
founded their appeal were as follows: ‘1. The condition is neither appropriate
nor necessary. 2. It is inappropriate to require the highway improvements to be
carried out prior to occupation of the dwellings permitted.’ Following the
service of that notice submissions were made to the minister in writing by both
sides.
During the
period in which those arguments were being addressed to the minister a factual
dispute emerged between the parties. It was contended on behalf of the present
applicants that the proposed widening of Meadway, which was the subject of the
condition, was really a matter that had emerged during discussions between the
parties; it was accepted by the developers and as a result of the form of the
amended application and the manner in which the plan was drawn was one which the
developers recognised as being their responsibility. The developers took a
different view, saying that the reality of the matter was that this drawing
representing the widening of Meadway had been put in at the insistence of the
applicants’ planning officer, that it was really no wish of theirs to involve
themselves in the additional expense that the work would involve and it was not
their responsibility; the line had been drawn on the plan for the purposes of
identification rather than representing any proposal on their part.
The Secretary
of State gave his decision on May 16 1984 and the present motion attacks the
findings of the Secretary of State in a number of separate paragraphs. One
paragraph which seems to be accepted on all sides is no 4, which is in these
terms:
The Secretary
of State is in no doubt that Meadway is below the standard desirable for the
amount of traffic it is already carrying and that the additional traffic, which
the 200 dwellings proposed to be erected on the appeal sites will undoubtedly
generate, well justifies the one metre increase in width which the disputed
conditions seek to achieve.
So as a matter
of planning practice he recognises that the applicants’ ambition was one that
was desirable and relevant to the present development.
Para 5 is,
however, the subject of attack by Mr Keene, counsel appearing on behalf of the
applicants. It states thus:
From the
submitted representations, he (the Minister) understands that the land on the
west side of Meadway between its junction with Manorley Lane/Halifax Road and
the north-western-most point of the appeal site land north of Mill Lane, is
neither owned nor controlled by (the developers)
that is the
piece of land I have already referred to as the tongue
As the power
to impose conditions on a planning permission conferred in section 30(1)(a) of
the 1971 Act extends only to land within an applicant’s control, the disputed
conditions are, in his view, ultra vires in so far as they are intended
to relate to the widening of Meadway between the points described above.
In this respect
it is evident that the minister has misunderstood the effect of the legislation
and particularly of section 30(1)(a).
The section
which gives power to planning authorities to grant planning permission is
section 29(1) which provides:
Subject to
the provisions of sections 26 to 28 of this Act, and to the following
provisions of this Act, where an application is made to a local planning
authority for planning permission, that authority, in dealing with the
application, shall have regard to the provisions of the development plan, so
far as material to the application, and to any other material considerations,
and (a) subject to sections 41, 42, 70 and 77 to 80 of this Act, may grant
planning permission, either unconditionally or subject to such conditions as
they think fit; or (b) may refuse planning permission.
It is evident
from other parts of the Act, particularly section 27, and indeed it is widely
accepted, that planning permission may be sought in respect of land which is
neither owned nor controlled by the applicant. It will be observed that section
29 is in very wide terms, particularly in relation to the planning authority’s
power to impose conditions.
Section
30(1)(a), however, is in these terms:
Without
prejudice to the generality of section 29(1) of this Act, conditions may be
imposed on the grant of planning permission thereunder (a) for regulating the
development or use of any land under the control of the applicant (whether or
not it is land in respect of which the application was made) or requiring the
carrying out of works on any such land, so far as appears to the local planning
authority to be expedient for the purposes or in connection with the
development authorised by the permission.
In fact, of
course, section 30(1)(a) is referring to land, as it says in express terms, not
only the subject of the application but land otherwise owned by the applicant.
It is in other words extending the powers that have been given by section 29.
That section 30(1)(a) is not in conflict with section 29 is evidenced by the
introductory words, that is to say it is without prejudice to the generality of
the earlier section.
It is quite
clear, therefore, that the Secretary of State’s decision that there was no
power to impose such a condition under the Town and Country Planning Act
because of the terms of section 30(1)(a) misunderstood, as I have already said,
the effect of that section.
One need not
dwell on this matter any further. It is conceded by counsel appearing on behalf
of the minister that that is so and he recognises that, subject to the other
arguments he has adduced, that is an error of law which would otherwise
properly be the subject of attack. Further, reference might be made in passing
to the decision of Woolf J in the case of Atkinson & Atkinson v Secretary
of State for the Environment and Leeds City Council (a decision given on
December 20 1982)* where the learned judge considers the inter-relation of the
same two sections and comes to the same conclusion.
*Editor’s
note: Reported at [1983] JPL 599.
The core of
the present dispute lies in what is set out in paras 6, 7 and 8 of the
minister’s decision, which I must read in full. By para 6 he says that he, the
minister:
also
understands that the land between Meadway and Mill Lane and between the eastern
and western limits of the appeal site north of Mill Lane was owned by the
council
that is to
say, the present applicants
at the time of
the two applications, but was purchased by (the developers) before the
submission of the appeals. Although, at the date of the decisions on the
applications, this land was neither in (the developers’) ownership nor control,
he takes no point about the vires of the conditions in that regard, because
(the developers) could not have implemented the permission in respect of this
land until (they) had acquired an interest in it. It is appropriate, therefore,
to examine the disputed conditions, in so far as they are intended to relate to
the widening of Meadway along the frontage of this land, as if (the developers)
already owned the land at the date on which the conditional permissions were
granted.
(7) As
Meadway was already an adopted highway, maintainable at the public expense,
when the permissions were granted, the requirement to widen it effectively
requires the cession of land for the road improvement.
I interpolate
that that means cession of land by the developer, for by then he had acquired
it.
Paragraph 34
of the Memorandum to MHLG Circular 5/68 says: ‘It is a general principle that
no payment of money or other consideration can be required when granting a
statutory permission, except where there is specific authority. Conditions
requiring for instance the cession of land for road improvements . . . should
not therefore be attached to planning permissions’.
Finally in
this context there is para 8:
Notwithstanding
any belief by (the present applicants) that (the developers) had amended
(their) applications to include the land needed for road widening and had
agreed to carry out the relevant works, there was in the Secretary of State’s
view, no legal basis for imposition of the conditions, having regard to what is
said in paras 5 to 7 above. As (the present applicants)
applications, given their justified concern about the adequacy of Meadway for
all the potential traffic–with the reservation that they would eventually have
had to approve details of matters reserved by the outline planning permission
no 81/8/04750, or alternatively revoke it, if they had been unable to negotiate
a binding agreement, as, for example, under section 52 of the 1971 Act, with
(the developers) either to carry out the works or contribute to their cost.
It therefore
emerges that the real question here was whether a condition could be attached
to a planning permission which required the developers or indeed any other
applicant to carry out works which are and were the responsibility of the
planning authority.
This statement
of the minister has been supported by Mr Laws, who appears as counsel on behalf
of the minister, and he submitted a proposition in these terms:
A planning
condition which requires a developer himself to carry out or fund a public
function of a local planning authority as the price of getting that planning
permission is unlawful.
In the present
case, although the facts are not altogether clear, it is quite evident that
between the date of the submission of the application in August 1982 and the
later submission of the amended plans in November 1982 the applicants told the
developers that planning permission would not be granted unless they carried
out works along Meadway, that is to say the initiative for the widening of the
road came from the applicants. Whether that be so or not as a matter of fact,
the submission made by counsel as to the correct principle of law would in fact
apply to both situations, that is to say whether the initiative came from the
planning authority on the one hand or the developer applicant on the other.
Indeed he allows of only one exception to the general application of the
principle he enunciates and that relates to the somewhat unlikely and unusual
case of a charitable volunteer who simply likes building highways and therefore
applies for planning permission so to do.
By way of
support for his submissions, Mr Laws relies on the decision of the Court of
Appeal in the case of Hall & Co Ltd v Shoreham-by-Sea Urban
District Council [1964] 1 WLR 240. I need refer only to three short
extracts. It is a case where an application had been made by a factory owner
whose land bordered on a busy main road. The planning authorities imposed upon
the factory owner a condition for granting him permission to develop the land
for industrial purposes that he should build an ancillary road over the entire
frontage of his site at his own expense and give unlimited right of passage to
the public upon it. It was held:
that although
the object sought to be attained by the defendants was a perfectly reasonable
one, the terms of the conditions, requiring the plaintiffs to construct an
ancillary road at their own expense for the use of persons proceeding to and
from adjoining properties and amounting to a requirement that the plaintiffs
should in effect dedicate the road to the public without any right to
compensation, there being a more regular course available under the Highways
Act 1959, were so unreasonable that they were ultra vires.
In the course
of giving judgment Willmer LJ said at p 251:
Bearing in
mind that another and more regular course is open to the defendants, it seems
to me that this result would be utterly unreasonable and such as Parliament
cannot possibly have intended. In Colonial Sugar Refining Co Ltd v Melbourne
Harbour Trust Commissioners [1927] AC 343 at p 359 Lord Warrington of
Clyffe, in delivering the judgment of the Privy Council, said, in relation to
the statute in question in that case: ‘In considering the construction and
effect of this Act, the board is guided by the well-known principle that a
statute should not be held to take away private rights of property without
compensation unless the intention to do so is expressed in clear and
unambiguous words.’ I can certainly find no clear and unambiguous words in the
Town and Country Planning Act 1947 authorising the defendants in effect to take
away the plaintiffs’ rights of property without compensation by the imposition
of conditions such as those sought to be imposed.
The same
applies to the current Act of 1971.
The circular
which is set out in the minister’s decision at para 7 describes the position on
the basis of the authority of Hall & Co Ltd v Shoreham-by-Sea
Urban District Council. Accordingly, Mr Laws and indeed Mr Wolton, who
appears on behalf of the developer, submit that it does not really matter
whether the developer acquiesced in the road-widening works being carried out
or whether he volunteered it as part of his application and it is not relevant,
they go on to submit, whether those works are included in the plan which was
submitted as part of the application or not. The requirement, they say, of the
planning authority requiring the developer to fund the function which was a
responsibility of the planning authority themselves is unlawful. In those
circumstances, as I have already said, they contend that the factual dispute,
in so far as it arises at all between the parties, becomes irrelevant.
Mr Keene on
behalf of the applicants argued that that principle of law, while generally
true, is in fact subject to certain limitations and he said it cannot possibly
apply where the proposal of the works to the highway, otherwise the function of
the local authority, was part of the planning application itself. He points to
the terms of the letter which accompanied the amended plan in November 1982 as
well as to the plans themselves as showing that the developer clearly
recognised that the proposed road widening formed part of the overall
application. Accordingly, Mr Keene distinguishes the decision in the case of Hall
& Co Ltd v Shoreham-by-Sea Urban District Council on that
ground: for it will be remembered that the construction of the new road in
front of the factory formed no part of that planning application of the factory
owner and was imposed upon him by the planning authority. Mr Keene says this is
not the case here; there is no exaction of works or cost of works against the
developer as a price for his receiving planning permission; it was something
that had been agreed by the developer as forming part of the site which was the
subject of the application.
Mr Keene goes
on to submit that we are really looking here at a commercial proposition and
that it was entirely up to the developer if he wished to include that
particular part of the works upon his plan or not to do so. Of course he
recognises that if the developer had not included it he would have been
unlikely to get planning permission, but that is one of the commercial
considerations, he submits, which a developer has to face and recognise. It is
perfectly reasonable, Mr Keene goes on to say, that such work should be part of
a general package which is comprised by a planning application. It is of course
the case, as it was here, that a good deal of road construction of access roads
has to be met as part of the estate development. That is not putting any
particular obligation upon the developer that he would not be facing in another
context already and the fact that the highway has to be extended in the way which
was suggested is, as Mr Keene says, part of the overall package which the
developer has to accept or reject.
Mr Keene goes
on to submit, therefore, that it was necessary in the present case to resolve
the factual dispute as to whether it truly be the case that the widening of
Meadway was part of the planning application as he contends, or whether it was
not, as the developer says. The terms in which paras 6, 7 and 8 are couched in
the minister’s decision plainly reveal that the minister had not addressed his
mind to that particular question and if he had not done so then he was not in a
position to make a decision in law as to whether the condition imposed by the
planning authority was lawful.
Mr Keene
submitted further that another complication emerges in that the land which was
required for widening the highway was not owned at the relevant time by the
developer and that the relevant time in this context was the date of the grant
of permission, a matter of law which is further the subject of decision by
Woolf J in the Atkinson case which I have already cited.
One is bound
to sympathise instinctively with the proposition enunciated by Mr Laws. It is
repugnant to any lawyer that money or indeed any other consideration should be
extracted from an applicant or a developer as a price for granting planning
permission, a task which is entrusted throughout the country to local
authorities to be given or withheld according to the intrinsic merits of the
application itself. Particularly is this so, of course, when the consideration
required would be for the benefit of the authority which is vested with the
right to grant or withhold planning permission.
Put like that,
of course, it sounds like a statement of high principle, but the principle in
the context of this legislation adopts a rather battered look when one is
referred, as I have been, to the terms of section 52 of the 1971 Act. That
section, as was noted by the minister in his decision, makes provision whereby
in circumstances akin to the present the developer and the planning authority
can come to some agreement whereby the expenditure involved in what one might
describe as the associated works can be apportioned. In fact I am told by Mr
Keene that as a matter of practice the effect of such an agreement almost
invariably is that the developer is required to do just that which he was
required to do by the condition imposed in the present case. So although it is
contended that the principle would exclude a condition being imposed under
section 29 of the Act, one arrives at precisely the same position when the
parties come to an arrangement within the terms of section 52.
To that extent
it makes the question to some degree artificial. On the other hand, it seems to
me that my task is to decide what is correct in principle. There is no
authority which has been referred to during the course of this hearing where it
can be shown that a distinction is to be drawn on the basis that the land is or
is not as the case may be the subject of the planning application itself.
Accordingly, if it be wrong, as would appear to be the case on authority, for
the planning authority to make such an exaction from the applicant in terms of
money or other consideration as the price for the granting of planning
permission, it must be wrong in every circumstance. The reality of the matter
is that if the developer or other applicant is anxious to get permission he is
in a very vulnerable position vis-a-vis the authority that is granting that
permission and one can readily see that it may be possible for his position to
be abused. Subject to section 52, to which I have already referred, it seems to
me only right as a matter of principle that he should be protected in those
circumstances. Lest the present applicants fear that there is implied criticism
in those observations, I say at once that that particular difficulty certainly
did not arise in the present case. It is perfectly obvious that this was a
commercial–I will not say transaction but a commercial–engagement which was
conducted very much at arm’s length. None the less one has to look at the
position as it would apply generally over the field of planning law and it
seems to me for those reasons that the principle which Mr Laws enunciates must
apply in all cases except in the very rare circumstances which he himself
propounded.
It follows
from those findings that the minister’s decision in the present case was right
on this aspect, that is to say on the matters with which he was dealing in
paras 6, 7 and 8, and if that be so he would be entitled to have arrived at the
decision he did in discharging the condition which had been attached to the
planning consent even if he were wrong, as I have already found, in his
approach to the law with regard to the matters which are the subject of para 5
of his decision.
There remains,
however, another argument which has been put before me on behalf of the
applicants by Mr Keene. That relates to the minister’s decision in para 9, in
which he says this:
Taking into
account his views, in para 4 above, about the need to widen Meadway, the
Secretary of State has given serious consideration to the exercise of his power
under section 36(3) of the 1971 Act to deal with the applications as though
they had been made to him in the first instance and to reverse the decision of
the council to grant consent. He has noted, however, that a number of houses
have already been built and are occupied, and to remove the planning consent
for their homes would cause considerable anxiety and possibly severe hardship
to innocent occupiers. Refusal of consent would also leave intact the outline
consent. Accordingly he has decided that he ought not to exercise the section
36(3) power in this way,
but he
expresses the hope that the parties will come to some agreement.
Mr Keene says
that the minister has again not applied his mind to the circumstances and the
real alternatives available to him: what he has done is simply to review the
position on the basis that he can either allow the condition to remain in
toto or decide that it should be withdrawn or discharged in the way that he
has done.
In the
circumstances of the present case the number of houses about which the minister
was expressing anxiety was a maximum of 50. It is unclear quite how many of
them were already occupied at the time of the ministerial decision. Therefore,
says Mr Keene, the minister ought to have addressed his mind to the question of
granting a reduced planning permission in relation to that number of houses and
thereby avoid hardship, but not to discharge the condition in so far as it
related to the remainder of the application, that is to say the balance of 150
houses. That would protect those already occupying houses, but would still
enable him to maintain the condition with regard to the rest. Therefore, argued
Mr Keene, the minister should have considered whether he should have granted a
reduced planning permission.
That is contested
on the part of the developer by Mr Wolton because he says that the minister
would only be entitled to take that alternative view of the application and
treat it in that way if thereby he did not substantially alter the terms of the
application itself. In reality, he said, if the minister had done the kind of
thing which was contended for by Mr Keene he would be granting consent to a
quite different application involving an entirely different set of
circumstances. There is, Mr Wolton argued, all the difference in the world
between a developer’s application to develop an estate involving 200 houses
and, on the other hand, the application being reduced as a result of the
minister’s intervention to only some 50 houses. Mr Wolton goes further and points
out that no arguments or facts had been placed before the minister in relation
to that particular alternative and it would accordingly be unreal to have
expected the minister to address his mind to something he was not equipped to
deal with. Furthermore, he contends that the minister had in fact addressed his
mind to the question overall because explicitly he says he had given serious
consideration to the exercise of his power under section 36(3).
I am not
convinced on the line of those arguments that the minister ever did address his
mind to the full range of his powers. The terms of his letter would rather
suggest otherwise. On the other hand, I think Mr Wolton’s arguments that the
minister would then be considering a planning application of a quite different
nature from the kind actually applied for, are correct and for that reason it
would not be right in my judgment for any order to issue against the minister
in that respect.
In all those
circumstances I have come to the conclusion that this application should be
refused.
The
application was refused, the applicants to pay the costs of the Secretary of
State.