Nature of ‘specified operations’ necessary to preserve an unimplemented planning permission of 1948–A soakaway will do, even if the contractor has got it out of line, and so will a length of drive laid out with a hardcore foundation
This was a
claim by Mrs Barbara Yvonne Mary Spackman, of Bath Road, Swindon, against
Wiltshire County Council for a declaration that valid planning permission
existed for construction of a house on land owned by her at Hodson, Chisledon,
Wiltshire. By a further application, Mrs Spackman sought to have quashed a
decision of an inspector appointed by the respondent, the Secretary of State
for the Environment, whereby permission was refused for a house on the same
site.
P Mottershead
(instructed by Hewitt, Woollacott & Chown, agents for Lemon & Co, of
Swindon) appeared for Mrs Spackman; C Cochrane (instructed by Collyer-Bristow
& Co, agents for the solicitors to the council) for the planning authority;
and H K Woolf (instructed by the Treasury Solicitor) for the Secretary of
State.
Giving
judgment, WILLIS J said that the plaintiff and her late husband had been very
anxious to make their home on the appeal site, and on July 21 1948 they
obtained detailed planning permission for a house there. Unhappily, the husband
developed multiple sclerosis, which meant that he had to live his life in a
wheelchair until his death in 1965. That sad fact, and the problems the
plaintiff faced with her two children after her husband’s death, provided a readily-understandable
explanation of why the 1948 permission was not acted on. Eventually, in 1972 or
1973, the plaintiff decided that she wanted to make her home at Hodson, but on
a scale appropriate to one person rather than four. That involved modification
of the 1948 plans, and the planning authority required submission of a fresh
application. In the course of negotiations with the council, moreover, the
plaintiff discovered that there was a deadline which applied to the 1948
permission. By paragraph 19 of schedule 24 to the Town and Country Planning Act
1971, it was provided that every planning permission granted before April 1
1969 should, if the development to which it related had not been begun before
the beginning of 1968, be deemed to have been granted subject to a condition
that the development must be begun not later than the expiry of five years from
April 1 1969. No development relative to the 1948 permission had been begun
before the beginning of 1968, and therefore the deadline, if that permission
was to be preserved, was April 1 1974. Section 43 of the 1971 Act set out what
constituted the beginning of development, and provided, so far as material,
that development should be taken to have been begun on the earliest date on
which any specified operations comprised in the development had been carried
out. The section went on to define ‘specified operations.’ On February 8 1974 the planning authority
refused permission for the modified development. The plaintiff appealed against
that decision and at the same time carried out what she was advised could be
regarded as ‘specified operations’ with a view to keeping the 1948 permission
alive. One question for him (his Lordship) was whether the works carried out,
or any of them, were in fact ‘specified operations.’ The appeal against refusal of permission for
the plaintiff’s modified plans was subsequently dismissed by an inspector given
power by the Secretary of State for the Environment to hear and determine it, and
the other question for the court was whether the inspector’s order was valid.
He (his
Lordship) would deal first with the question of the ‘specified
operations.’ Two operations were relied
on. The first was a partially-constructed soakaway 6 ft deep, partially filled
with hardcore but not covered over. Drainage trenches were dug, 3 ft deep and
20 ft long, and in each trench a 4-ft length of pipe had been laid leading to
the soakaway. The second operation was the laying-out with a hardcore
foundation of a short section of the access drive. It was conceded by the
plaintiff that the soakaway was about 35 ft from the nearest soakaway shown on
the 1948 plans, and that there was some deviation in the section of access
drive constructed from the line approved in 1948. It was clear, however, that these
deviations were immaterial. Mr Cochrane’s point on the soakaway was that if the
trenches dug in March 1974 were projected, two of them would miss the notional
1948 building altogether. He (counsel) suggested that the works were so wide of
the mark that they could not be regarded as operations relative to implementing
the 1948 permission. Mr Mottershead conceded that the drive was, as it were,
off course, and that the contractor made a mistake in the location of the
soakaway and the direction of at least one trench, but said that the other two
could have been used or adapted to connect the soakaway with the 1948 house had
it been built. He (his Lordship) agreed with counsel that if the 1948 house had
been built, a substantial part, at any rate, of the soakaway works could have
been used. If, moreover, the test to be applied was a subjective one, he
(Willis J) was satisfied that the plaintiff intended the works to be relative
to the 1948 plans, and that she should not suffer by reason of any error due to
the failure to comply with her instructions. He was therefore of the opinion,
though he expressed it with diffidence, that the soakaway and drainage trenches
were ‘specified operations.’
There was no
question but that a section of the drive, with the associated hedge-grubbing,
was laid out in a preliminary way before April 1 1974. But was a laid-out
vehicular access, 60 yds long, from a highway to a dwellinghouse with garage, a
‘road’? It need occasion no surprise
that neither in the 1971 Act itself nor in its long definition section was
there any assistance as to what was in the draftsman’s mind when he used this
word. Mr Cochrane submitted that ‘road’ involved the concept of access by the
public, even though an access road might not be a repairable highway. Counsel
said that he would concede that an estate road serving a number of houses, and
thus a road to which in one form or another the public had access, was a ‘road’
within section 43, but he contended that a drive serving only one house was
not. He (his Lordship) had come to the opposite conclusion. It should not be
forgotten that the Act’s provisions were in a sense penal, taking away from the
subject, albeit in a fairly leisurely way, a vested entitlement. In his view
they should be construed benevolently towards, and not strictly against, the
subject. But whether or not that was the right approach, he found no difficulty
in holding that the access drive to the 1948 house was a ‘road’ within section
43 (1) (d). It seemed a ludicrous situation that if the plaintiff had chosen to
construct the whole of her access drive to the house before April 1 1974, much
in the same way that estate developers built their estate roads before building
houses, it would be said not be a ‘specified operation’ because it was not a
‘road,’ whereas if she had chosen to build one soakaway in the exact 1948
position, with trenches pointing in the correct direction, that would be
accepted as a ‘specified operation.’ In
his judgment, the plaintiff had carried out ‘specified operations’ prior to
April 1 1974, and so preserved a valid planning permission to carry out the
development approved in the 1948 plans subject to immaterial variations. He
accordingly granted the declaration sought by the summons against the council.
It must follow
that the refusal of the Department of the Environment to grant planning
permission for what Mr Mottershead called the ‘revised version (1973)’ must be
quashed. The inspector plenipotentiary was plainly in a difficulty in deciding
the question whether or not the ‘authorised version’ was extant when he was
considering the ‘revised version.’ It
was agreed that it was within his power to decide this question had he thought
it right to do so. Instead, it seemed clear from his decision that he ‘noted’
the submission on the 1948 permission, but then put it on one side and decided
the appeal solely on the merits of the 1973 application, unaffected in any way
by the earlier planning history. It went without saying that if at that time
the plaintiff had a valid planning permission it was a vitally material
consideration for the inspector to take into account. This involved no
criticism of the inspector, but must result in the quashing of his decision.
The plaintiff
was awarded her costs against the local planning authority in respect of the
summons, and against the Secretary of State in respect of the application.
