Town and Country Planning Act 1971–Appeal against decision of Secretary of State for the Environment quashing enforcement notices–Alleged failure to comply with conditions of planning consent–Conditions ultra vires–Demolition of existing building required–Planning powers not to be used for an ulterior object, however desirable–Secretary of State’s decision correct in law
This was an
appeal under section 246 of the Town and Country Planning Act 1971 by the
Newbury District Council against a decision of the Secretary of State for the
Environment on July 24 1975 quashing two enforcement notices served by the
former Hungerford Rural District Council on the ground of a failure by the
second respondents, the International Synthetic Rubber Co Ltd, to comply with
conditions subject to which planning permission had been granted for the use of
buildings at Membury Airfield, near Newbury.
P Boydell QC
and R M K Gray (instructed by Sharpe, Pritchard & Co, agents for W J
Turner, Newbury District Council) appeared for the appellants; H K Woolf
(instructed by the Treasury Solicitor) represented the first respondent, the
Secretary of State; and David Widdicombe QC and A Anderson (instructed by
Herbert Smith & Co) appeared for the second respondents.
Giving the
first judgment, MICHAEL DAVIES J said that the appeal was primarily concerned
with two hangars at the former wartime RAF station at Membury. The hangars were
described by the inspector who held a local inquiry following the International
Synthetic Rubber Co’s appeal against the enforcement notices as ‘large,
prominent and ugly.’ Until 1959 they had
been used by the Home Office for the storage of some 162 ‘mothballed’ civil
defence vehicles. In October 1959 planning permission was given to a Mr Gilbey
for a change of use ‘to allow for storage of agricultural products.’ There was a condition that ‘the buildings
shall be removed at the expiration of the period ending December 31 1964 and
all works necessary for the reinstatement of the land to its former state and
condition shall then be carried out to the satisfaction of the council.’ Mr Gilbey protested as to the time allowed
and the requirement to reinstate the land, and on December 2 1959 a fresh
permission was given with the relevant condition reduced to ‘the buildings
shall be removed at the expiration of the period ending December 31 1970.’
In 1961 the
International Synthetic Rubber Co Ltd (hereinafter called ‘ISR’) became
interested in the hangars and they applied for planning permission for ‘use of
the two hangars at present on Membury Airfield as warehouses for the storage of
synthetic rubber.’ In May 1962 planning
permission was duly given with the condition that ‘the buildings shall be
removed at the expiration of the period ending December 31 1972.’ In July 1962 ISR bought the hangars and lease
of the land and had used them ever since for the purpose stated above. They did
not remove the hangars in December 1972 or at all. In November 1973 enforcement
notice A was served. The principal question argued before the court was whether
the Secretary of State was right in quashing notice A on the grounds that the
condition as to the removal of the buildings was ultra vires, invalid
and unreasonable.
The power of a
planning authority to grant planning permission subject to a condition or
conditions was contained in sections 29 and 30 of the Town and Country Planning
Act 1971. Certain possible conditions were specifically referred to in section
30, but quite apart from those the planning authority’s discretion was
virtually unlimited. It was, however, well established that that discretion was
subject to some limitations. The case most often looked at was Pyx Granite
Co Ltd v Minister of Housing and Local Government [1958] 1 QB 554
and the observations of Lord Denning MR at p 572 where he said:
The
principles to be applied are not, I think, in doubt. Although the planning
authorities are given very wide powers to impose ‘such conditions as they think
fit,’ nevertheless the law says that those conditions, to be valid, must fairly
and reasonably relate to the permitted development. The planning authority are
not at liberty to use their powers for an ulterior object, however desirable
that object may seem to them to be in the public interest. If they mistake or
misuse their powers, however bona fide, the court can interfere by declaration
and injunction.
That approach
had been endorsed by the House of Lords in Fawcett Properties Ltd v Buckinghamshire
County Council [1961] AC 636 in which case Lord Denning in effect pointed
out at p 678 that the existence of some limitation upon what would otherwise be
the unfettered discretion of a public authority was recognised and explained
before the Pyx Granite case in Associated Provincial Picture Houses
Ltd v Wednesbury Corporation [1948] 1 KB 223.
There were a
number of factors in the present case which had tempted him (his Lordship) to
strain to conclude that the condition was valid and notice A was good. It was
plain that, from a planning point of view, the sooner the hangars were removed
the better. ISR had not appealed to the Secretary of State when the condition
was imposed. ISR had acquired the hangars with their eyes open. But, on
reflection, he (his Lordship) was satisfied that the removal of the buildings
would involve some expense, would prevent reversion to the previous use and
might cause injustice to the freeholder. So he was constrained to conclude that
the Secretary of State was right in concluding that the condition, however well
intentioned, went too far and was bad. He did not say that a condition as to
the removal of a pre-existing building could never be good–for example a
permitted development might be likely to be going to cause the building to
become a health hazard–and he was content to base his judgment upon ‘the
circumstances of this case,’ as the Secretary of State put it in his decision
letter. In the circumstances of this case the local planning authority did ‘use
their powers for an ulterior object, however desirable.’
A second point
taken on behalf of ISR was that no planning permission was needed in 1962 for
their use of the hangars because they had been used, certainly since 1955, for
purposes within Class X of the Town and Country Planning (Use Classes) Order
1950 (now the order of 1972). There was no discernible error of law in the
Secretary of State’s conclusion that planning permission was needed in 1962 on
the ground that the Home Office use was not within Class X. It was submitted
that if the Secretary of State were wrong about that then ISR by their conduct
in applying for permission in 1962 and subsequently enjoying its benefits gave
up any existing use rights. It was said that ISR could not ‘blow hot and cold’
and reliance had been placed on Prossor v Minister of Housing and
Local Government (1968) 67 LGR 109. On his Lordship’s view of the appeal
that argument did not arise. The appeal should be dismissed.
Agreeing that
the appeal should be dismissed ROBERT GOFF J said that the Secretary of State
allowed the appeals by ISR against the enforcement notices on the ground
specified in section 88(1)(b) of the Act, namely, that the matters alleged in
the notices did not constitute breaches of planning control. So far as
enforcement notice A was concerned, the first condition in the 1962 permission
was held to be invalid because the Secretary of State considered:
. . . in the
circumstances of this case where planning permission was sought merely for a
change of use of existing substantial build-
expiration of a specified number of years was not sufficiently related to the
change of use in respect of which the planning permission was granted and was
unreasonable.
However, the
Secretary of State took the view that severance of the condition from the
permission would have the effect of altering the character of the permission by
making it a permanent permission and he therefore concluded that the 1962
planning permission must be regarded as void. So far as enforcement notice B
was concerned, the condition in the 1959 permission was held to be invalid
because it was not reasonable, since the building to be extended, a Nissen hut
used as an office, was not subject to a comparable condition and no useful
purpose would have been served by requiring demolition of part of an office
building. The Secretary of State therefore exercised his power to discharge
that condition. In the result the Secretary of State directed that the two
enforcement notices be quashed. In the appeal before the court it had been
recognised that the appeal in respect of enforcement notice B was insignificant
and argument had been concentrated on enforcement notice A.
Under section
29(1) of the Act a local planning authority had the power to grant planning
permission either unconditionally or subject to such conditions as it thought
fit. Section 30(1) provided:
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
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 of or in connection with the
development authorised by the permission. . . .
These
provisions were in wide terms, but, as Lord Widgery CJ said in Kingston upon
Thames Royal London Borough Council v Secretary of State for the
Environment [1973] WLR 1549 at 1553:
It has been
recognised for a very long time that they are subject to certain restrictions.
The two principal restrictions which the courts have placed upon those words
are first that the condition is invalid as being contrary to law unless it is
reasonably related to the development in the planning permission which has been
granted. It must not be used for an ulterior purpose and must, in the
well-known words of Lord Denning MR in Pyx Granite Co Ltd v Minister
of Housing and Local Government [1958] 1 QB 554 at 572, ‘fairly and
reasonably relate to the permitted development.’ The second restriction on those words which
the courts have adopted in recent years is that a condition which is so clearly
unreasonable that no reasonable planning authority could have imposed it may be
regarded as ultra vires and contrary to law and treated as such in
proceedings in this court.
In the case of
the 1962 permission the Secretary of State appeared to have regarded the
condition as invalid by reason of the first of these two restrictions–that it
‘was not sufficiently related to the change of use in respect of which the
planning permission was granted’ (para 8 of the decision letter). However, the
first restriction was clearly related to the second. They both derived from the
general principle upon which the court would interfere with the exercise of
executive discretion, which is at bottom a principle that discretion must be
exercised reasonably: Associated Provincial Picture Houses v Wednesbury
Corporation [1948] 1 KB 223 at 229, per Lord Greene MR, and Fawcett
Properties Ltd v Buckinghamshire County Council [1961] AC 636 at
679, per Lord Denning. It would be wrong, therefore, to treat Lord Denning’s
words in Pyx Granite as though they were the words of a statute; they
were to be applied broadly as embodying a particular aspect of a general
principle of reasonableness.
The present
case was concerned with the imposition, upon a planning permission for a
temporary change of use, of a condition which required demolition of an existing
building at the end of the period in question. He (his Lordship) was not
prepared to say that any such condition would necessarily contravene Lord
Denning’s principle. It was possible to conceive of circumstances, for example
where the temporary use involved a health hazard, in which it might be
justifiable to impose a condition requiring demolition of an existing building
after the expiry of the temporary period of use. But such a case would be rare.
The aspect of reasonableness which Lord Denning’s principle embodied was that
the imposition of conditions should be reasonably related to the permitted
development which was the subject-matter of the exercise of the discretion; it
was not enough that they merely related to the land which was the subject-matter
of the development. There might be many objectives which, from a planning point
of view, a local planning authority considered desirable, but it was not a
proper exercise of its discretion to achieve such objectives by attaching such
a condition to a planning permission if the condition did not fairly and
reasonably relate to the permitted development. In such circumstances, although
acting from no doubt laudable motives, the local planning authority was using
its powers for an ulterior purpose, and that was not allowed. A local authority
had to use other powers to achieve its objective, for example its powers under
section 52 of the 1971 Act to regulate the development or use of land by
agreement, though the exercise of such power might cost money.
Applying these
principles to the present case he (his Lordship) did not consider that the
Secretary of State misdirected himself in law in holding that the condition was
ultra vires. He (his Lordship) did not see how a condition that the
buildings be removed related to the permitted development which was the use of
the building as a warehouse. No doubt, from the broad planning point of view,
it was desirable that the buildings should be removed, but the local planning
authority was not entitled to achieve that result in the present way. In
concluding, in the circumstances of the case, that the condition was invalid
because it was not sufficiently related to the change of use in respect of
which the planning permission was granted, the Secretary of State reached a
conclusion which00 was in law entirely justified. The appeal in respect of
notice A should be dismissed.
Although the
issue on ISR’s alternative submission did not arise he (Robert Goff J) proposed
to deal with it in view of the full argument the court had heard upon it. The
question on that issue was whether the Secretary of State misdirected himself
in law in holding that the Home Office use from 1955 to 1959 was not within
Class X of the Use Classes Order 1950, the submission of ISR being that, if it
was within Class X, then no planning permission was required by them in 1962.
In his Lordship’s judgment the Secretary of State did not misdirect himself in
that respect. Class X was concerned with ‘use as a wholesale warehouse or
repository for any purpose.’ Clearly the
Home Office use was not use as a wholesale warehouse; the only question was
whether it was use as a repository. Having regard to the natural and ordinary
meaning of the word and the context in which it was found, a repository did not
just mean a store. It meant ‘a place where goods are stored away, to be kept
for the sake of keeping them safe, as part of the storage business’; G Percy
Trentham v Gloucestershire County Council [1966] 1 WLR 506 at 512,
per Lord Denning MR; and Horwitz v Rowson [1960] 1 WLR 803 at
810, per Havers J, and Calcaria Construction Co (York) Ltd
v Secretary of State for the Environment (1974) 72 LGR 398 at 402, per
O’Connor J. That was precisely the test which the Secretary of State applied in
the present case. Whether the Home Office use was in fact a use as part of the
storage business was a question of fact for the Secretary of State to decide;
it could not be said that he misdirected himself in law in reaching his
conclusion.
Finally, it
had been argued on behalf of the appellants that,
Crown use and no planning permission had been granted ISR could not claim that
they did not require planning permission in 1962. His Lordship could not accept
that submission. Section 266(3) of the 1971 Act provided that ‘No enforcement
notice shall be served under section 87 of this Act in respect of development
carried out by or on behalf of the Crown after the appointed day on land which
was Crown land at the time when the development was carried out.’ The subsection provided that no enforcement
notice should be served in respect of such a development. It did not provide,
as it easily could have done if such had been the intention, that no
enforcement notice should be served on the Crown in respect of such
development. It followed that if a private citizen subsequently acquired any
such land from the Crown he would not have to apply for planning permission in
respect of development within the subsection. He would be protected from the
service of an enforcement notice by the terms of the subsection, which were
explicit. No argument had been addressed to the court why the Secretary of
State’s decision in respect of enforcement notice B should not stand. The
appeal should be dismissed.
LORD WIDGERY
CJ agreed and said that he had nothing to add.
The appeal
was dismissed and the appellants were ordered to pay costs of the second
respondents, the International Synthetic Rubber Co Ltd. Leave to appeal to the
Court of Appeal was granted.
