Town and Country Planning Act 1971–Planning permission sought for housing development–After ‘deemed refusals’ and appeals to Secretary of State applicants and planning authority agreed conditions for permission–Provision for children’s play areas, open space and social/shopping centre–Conditions rejected by Secretary of State and appeals dismissed–Grounds inter alia that permission cannot be given either directly or by a condition for developments not included in applications, that it is ultra vires to require dedication as open space and that social/shopping centre condition was uncertain–Held that conditions as to ancillary or incidental uses are valid, also that variations in application can be agreed before determination–Other objections unjustified–Secretary of State’s decisions quashed
These were two
applications to the court under section 245 of the Town and Country Planning
Act 1971 raising similar questions and relating to adjoining areas of land. The
applicants were respectively Robert Hitchins Builders Ltd and Britannia
(Cheltenham) Ltd and the respondents in both cases were the Secretary of State
for the Environment and Tewkesbury Borough
applications followed the dismissal by the Secretary of State of the
applicants’ appeals despite the fact that in each case the planning authority
had agreed with the applicants the conditions on which the authority was
willing to grant permission.
P Freeman QC
(instructed by Robins & Co, of Cheltenham) appeared on behalf of the
applicants; Harry Woolf (instructed by the Treasury Solicitor) represented the
first respondent, the Secretary of State for the Environment. The second
respondents, Tewkesbury Borough Council, took no part in the proceedings.
Giving
judgment, SIR DOUGLAS FRANK QC said: These two appeals are under section 245 of
the Town and Country Planning Act 1971. They are by consent heard together
because they concern adjoining areas of land and relate to fundamentally the
same considerations arising from decisions given on the same day. However, I
should first summarise the facts relating to the first-named applicant, whom I
shall call ‘Hitchins,’ and then to the second-named applicant, whom I shall
call ‘Britannia.’
On July 30
1973 Hitchins made a detailed application for planning permission to erect 81
dwellings on 7.63 acres at Two Hedges Road, Bishop’s Cleeve. On March 6 1974
that application was by agreement converted into an application for outline
permission. On April 5 1974 Hitchins gave notice of appeal to the Secretary of
State against what is commonly called ‘deemed refusal,’ which in truth is an
appeal against failure to give a decision within the prescribed time. Further,
Hitchins and the second respondents, whom I shall call ‘the council,’
negotiated about various facets of the development, the upshot of which was
that they agreed a schedule of conditions to be attached to a planning
permission, and Hitchins gave certain undertakings under section 19 of the
Gloucestershire County Council Act 1956, regulating development of the site.
The first
condition provided that:
(a) This permission is for the estate layout only
and no dwellings shall be erected on the site before fully detailed plans
thereof showing the siting, design, external appearance of the buildings,
landscaping, means of access thereto (hereinafter referred to as the ‘reserved
matters’) and siting of any electricity sub-stations, have been submitted to
and approved by the Local Planning Authority.
The reason
given for this condition was that ‘this permission is for the estate layout
only and the matters above referred to will require further
consideration.’ There then followed a
number of other conditions not in issue in these proceedings, and then two
conditions, which are:
(i) Provision shall be made in the submitted
estate layout plans for incidental children’s play areas and public open space
in connection with the proposed development on the scale of:– 0.07 ha of land
for children’s playgrounds per 100 dwellings. 0.85 ha of land for public open
space including casual play areas per 100 dwellings.
(j) The landscaped
areas referred to in condition (f) above and the children’s play areas and
public open space referred to in condition (i) shall be seeded or otherwise put
down to grass or surfaced as appropriate to the satisfaction of the local
planning authority, before the dwellings adjoining the areas to be so treated
are occupied or as otherwise indicated by the authority and shall be maintained
until such time as these areas are adopted for maintenance by a local
authority.On November 21 1975 the council wrote to the Secretary of State
saying that agreement had been reached and asked him to allow the appeal
subject to the proposed conditions and the reasons for them. The council also
said that an undertaking had been given under section 19 of the Act of 1956 to
ensure that other matters of concern to the council had been dealt with to
their satisfaction. They further asked that the appeal should be dealt with by
way of written representation. I may here point out that the undertakings
included some to the effect that Hitchins would lay out etc the open spaces,
amenity land and play areas to the council’s specification and when called upon
to do so by the council would convey to the council those areas to become
public open space.
In April 1976
an officer of the Department of the Environment visited the site and asked for
further details of its planning history and for certain plans. Those requests
were complied with in a letter dated May 6 in which it was made clear that the
application was for outline permission and that the section 19 undertaking had
been given. On August 29 1976 the department by letter conveyed the Secretary
of State’s decision. The letter having set out certain factual matters then
stated:
8. Your
clients have reached agreement with the local planning authority on the appeal
proposals and are willing to accept certain conditions which the Secretary of
State is asked to endorse. As regards these conditions it is noted that
proposed condition (i) required that provision be made in the estate layout
plans for children’s play areas and public open space. Whilst it is accepted
that the provision of such amenities would be desirable if permission were to
be granted, it is considered that because these proposals did not form part of
the particular applications for planning permission they are not matters which
could properly be required by means of a condition attached to a planning
permission granted as a result of this particular application. Therefore the
Secretary of State has no alternative but to dismiss both appeals. It is of
course open to your clients to submit fresh applications to the local planning
authority incorporating the matters on which agreement has been reached.
9. For the
reason given the Secretary of State hereby dismisses your appeal.
I turn now to
the facts in Britannia’s case. On October 9 1973 they made two applications for
planning permission in respect of land also adjoining Two Hedges Road, Bishop’s
Cleeve. The first application was for outline permission to develop about 33
acres for housing. The second application was for the erection of 37 houses on
what was said to be 12 acres but in fact was about 11 acres of land, being part
of the 33 acres. The first application was accompanied by a sketch plan showing
a road layout, 214 houses, 4 shops and an area marked ‘public open space,’ all
on 22 acres. The second application was for that part of the first 33 acres not
covered by the sketch scheme. On April 28 1974 Britannia gave notice of appeal
against deemed refusals for both applications. As with Hitchins’ appeal
negotiations with the council brought about agreement for permission to be
granted subject to agreed conditions and an undertaking under the 1956 Act.
The conditions
relating to the first application included one in terms to the same effect as
condition (a) in Hitchins’ conditions and included two conditions referred to
in the Secretary of State’s decision which were in these terms:
(o) Provision shall be made in the submitted
estate layout plans for incidental children’s play areas and public open space
in connection with the proposed development on the scale of:– 0.07 ha of land
for children’s playgrounds per 100 dwellings. 0.95 ha of land for public open
space including children’s casual play areas per 100 dwellings . . . (s)
Provision shall be made in the submitted estate layout plans for a small
village-type social/shopping centre. There were also agreed conditions relating
to the second application, and for reasons which I shall later relate they were
withdrawn.
On December 2
1975 the council wrote to the Secretary of State saying that agreement had been
reached as to the conditions and an undertaking under the 1956 Act, and asking
for the appeals to be allowed subject to the conditions and the reasons for
them. However, the Department took the view that the appeal on the second
application could not proceed as the agreed plans differed too substantially
from the originals. Subsequently, it was agreed to treat that application as an
outline application to be granted subject to the conditions the same as those
agreed in the first application, but with condition (s) deleted. As the land in
the second application was wholly comprised in the area of the first
application, it was otiose to make a separate outline application for the
smaller area, and I can only assume that that was done in order to avoid having
to rewrite the undertakings under the 1956 Act. Those undertakings contained
provisions similar to those given in the undertaking by Hitchins. Britannia
also asked that the appeal be dealt with by written representations and a site
visit. On August 20 1976 the Secretary of State’s decision was given in a
letter, the last paragraph of which reads:
8. Your
clients have reached agreement with the local planning authority on the appeal
proposals and are willing to accept certain
conditions it is noted that proposed condition (o) for application [and the
number is given] referred to provision being made in the estate layout for
children’s playgrounds and public open space, and that proposed condition (s)
for (the first application) required the provision of a village-type
social/shopping centre. Whilst it is accepted that the provision of such amenities
would be desirable if permission were to be granted, it is considered that
because these proposals did not form part of the particular applications for
planning permission they are not matters which could properly be required by
means of conditions attached to planning permissions granted as a result of
these applications. Therefore the Secretary of State has no alternative but to
dismiss both appeals. It is of course open to your clients to submit fresh
applications to the local planning authority incorporating the matters on which
agreement has been reached. For the reason given the Secretary of State hereby
dismisses your client’s appeals.
Thus the
reasons for the Secretary of State’s decisions were that he could not properly
require by means of conditions the provision of, in Hitchins’ case, children’s
play areas and public open space and, additionally in Britannia’s case, a
social/shopping centre.
Mr Woolf in
explanation of these reasons made the following submissions: (1) The Secretary
of State cannot give planning permission for a development different from that
applied for and cannot get around that by imposing conditions the effect of
which is to give planning permission for something different. (2) The Secretary
of State cannot give permission for development of an area that materially
differs from that covered by the applications unless it is a part clearly
identifiable, in which case that area can be excluded altogether although the
agreement of the applicant may be necessary Thus he can say that a definite
part is not to be built on, but cannot say that a part is to be put to shop
use. He cannot impose conditions to override this limitation to his power to
give planning permission. (3) The Secretary of State has no power which
requires land to be dedicated to public use. (See Hall & Co Ltd v Shoreham-by-Sea
Urban District Council [1964] 1 WLR 240, R v Hillingdon London
Borough Council, ex parte Royco Homes Ltd [1974] QB 720.) (4) The Secretary of State cannot impose
conditions which are so uncertain as to be incapable of enforcement. This
submission related only to the condition as to the provision of a
social/shopping centre which Mr Woolf submitted it was impossible to give
effect to as the words are incapable of definition. And he referred to Fawcett
Properties Ltd v Buckingham County Council [1961] AC 636.
In general, Mr
Woolf submitted that the powers to impose conditions in section 29 (1) of the
Town and Country Planning Act 1971 arose from the power to give planning
permission, and the power to give permission is related only to the use applied
for, so that permission cannot be given for another use or for a different
area. Thus, although shops may be usual in a development of this scale they do
not constitute housing, and therefore permission for them cannot be given under
an application for housing and nothing more. Similarly, permission cannot be
given for public open space. He further said that it would be unreasonable to
do something by a condition which cannot be done under a substantive power. No
doubt Mr Woolf is right in saying that the planning authority, and therefore
the Secretary of State, cannot give permission for a development other than
that applied for, because by section 29 of the Act of 1971 the authority’s
power to grant or refuse permission is dependent upon an application and
therefore the particular application before them. However, it must be beyond
doubt that the development described in the application is deemed to include
any development ancillary or incidental to the proposed development. Thus, to
take an extreme case, a substantial area used as an administrative office block
was nevertheless held to be an industrial use having regard to the predominant
use of the building. (See Vickers Armstrong Ltd v Central Land Board
(1957) 9 P & CR 33.) Further, it is
clearly envisaged in the procedure for obtaining an outline planning permission
under article 5 (2) of the Town and Country Planning (General Development)
Order 1977 that ancillary matters such as roads and landscaping are to be left
to be dealt with at the detailed approval stage.
It seems to
me, therefore, a question of fact and degree whether a use is ancillary or
incidental to the specified development. In these two cases the population
resulting from the proposed developments would be of the order of 250 and 1,000
persons respectively. It is obvious that developments on this scale necessarily
involve development other than the mere building of houses; for example, estate
roads. But more than roads would be required to provide the kind of amenities
required for estates like these, and provision for children’s play areas and
other open space, local shops and some provision for children’s play areas and
other open space, local shops and some provision for social activities would be
expected. Indeed I observe that the sketch plan sent with Britannia’s outline
application showed an area marked ‘public open space,’ For my part I have no
hesitation in concluding that the requirements of the conditions under consideration
are incidental and ancillary to the housing development being permitted. I gain
support for this view from the reasons given for the condition. In the case of
the play areas and open space it is ‘to ensure adequate play areas and/or
public open spaces are provided on the site within easy reach of the occupiers
of the proposed dwellings for outdoor recreational activities.’ The reason for the social/shopping centre is
‘to ensure that adequate provision is made for community facilities on this
site in the interests of good planning.’
Accordingly, in my judgment these require development incidental to it.
I further
think it is competent for the applicants and the planning authority to agree to
a variation of an application at any time up to the determination of the
application. To take any other view would fly in the face of everyday practice
and make the planning machine even more complicated than it is, for it is
common practice for an application to be amended by agreement following
negotiations between the applicant and the planning officer. I think without
doubt that in these cases the applicants and the council agreed that
playgrounds, public open space and, in Britannia’s case, a social/shopping
centre should be included in the development. Therefore they form part of the
application that came before the Secretary of State, and not only was he
empowered to deal with it in that way but was bound to do so.
I turn now to
the second submission. Mr Woolf conceded that it is permissible to exclude from
the permission a clearly identified area, and indeed that much is recognised in
section 147(6) of the Act of 1971. However, I think there is a necessity in
dealing with an outline application that certain areas will be excluded from
the particular development applied for, and that in these cases it is
inevitable that a considerable part of the area will have development other
than houses and their curtilages, and I have already instanced the obvious
example of roads. I accept it would be going too far in a permission for
housing development to require the building of a social/shopping centre and
thereby impliedly grant permission for it. However, the requirement in
Britannia’s case is that provision shall be made for a social/shopping centre
in the layout plan, and all that means, as I understand it, is that there will
be shown on the plans an area suitable in size and location for a
social/shopping centre, the planning authority hoping or anticipating that an
application for permission to build it would follow. Thus, the area to be
preserved in that way would become identified at the detailed approval stage
and of course if any dispute arose as to its location or size there would be a
right of appeal to the Secretary of State. I find nothing wrong with that. On the
contrary it seems to me a sensible and constructive exercise of town planning
powers. The play areas and public open space are required to be seeded or
surfaced, and I see nothing wrong with that.
Turning to Mr
Woolf’s third submission, it is clear from Hall & Co Ltd v Shoreham-by-Sea
Urban District Council that a condition requiring a road to be dedicated to
the public is unreasonable and therefore ultra vires, and no doubt the
same applies to open space. The condition in Hall’s case required the
applicant as and when required by the local planning authority
adjoining land. In my judgment the conditions in the instant cases are
different in one material respect, namely that they do not require any land to
be dedicated to the public. Indeed it does not necessarily follow from the
terms of the conditions that the open space will become dedicated to the
public, for there is a requirement that they ‘shall be maintained until such time
as these areas are adopted or maintained by the local authority.’ Hence there is no requirement to dedicate,
nor in the proposed conditions is any undertaking given by the council to adopt
the open space. Therefore it follows that the spaces would not become dedicated
and adopted save under some other agreement or by the operation of other
statutory powers than that dealt with in the undertaking given under the local
Act. Mr Woolf contends however that the use of the adjective ‘public’
necessarily connotes dedication to the public. But as I have said there is
nothing in the conditions which would require dedication to the public, and the
applicants would be entitled to exclude the public from those open spaces until
such time as they were adopted.
Finally I turn
to the allegation about uncertainty. That is confined to the social/shopping
centre condition. Mr Woolf says that the words of the condition are incapable
of definition and therefore it is impossible to give effect to them. In Fawcett
Properties Ltd v Buckingham County Council, Lord Denning said: ‘I am
of the opinion that a planning condition is only void for uncertainty if it can
be given no meaning or no sensible or ascertainable meaning, and not merely
because it is ambiguous or leads to absurd results. It is the daily task of the
courts to resolve ambiguities of language and to choose between them; and to
construe words so as to avoid absurdities or to put up with them. And this
applies to conditions in planning permissions as well as to other documents.’
I accept that
at present the condition is uncertain in that, for example, the area to be
preserved is not stated, nor are the number of shops, and in that the word
‘social’ is capable of many meanings. However, it seems to me that it is only
the area to be preserved for the centre which has to be determined under this
planning permission, and that not until the detailed approval state. In other
words, for the development to be permitted all that is required to be known is
the extent of the area to be preserved under the permission being granted. That
area will be ascertained at the detailed approval stage, and if there is any
dispute as to it, the area will be determined by the Secretary of State on
appeal.
For all the
foregoing reasons, in my judgment the Secretary of State underestimated his
powers when he said that as the proposals for play areas, public open space and
a village social centre did not form part of the application they could not be
required by means of conditions. And accordingly his decisions must be quashed.
Had I reached any other conclusion, I should have added to the complexities of
the already complex body of planning law and to the administrative difficulties
and delays in dealing with applications for planning permission. Thus in the
instant case the applicants instead of appealing to the Secretary of State
could have agreed to extend the time for the council’s decision, in which event
presumably the council would have granted the permission in the agreed form.
Then the development would have been carried out under an invalid permission
and the developers would have been at risk of having enforcement procedure
taken against them. The fact that they might have a remedy in estoppel would
not alter the unlawfulness of the development. Further, the facts I have just
hypothesised commonly happen, and as I have said the decisions are quashed.
Costs were
awarded against the Secretary of State in both cases.
