To what extent (if at all) can planning permission be terminated by abandonment?
When the Town and Country Planning Act 1947 introduced comprehensive controls over development, it made detailed provision as to the granting of planning permission but contained no provisions relating to the extinguishment of it. Although the Act provided for the revocation (or amendment) of a planning permission and empowered a local planning authority to order the discontinuance of a use and/or the removal of any building or other works, such an order required the approval of the minister. Moreover, full compensation was payable to any person with an interest in the land who suffered any loss as a result of this order. The Act also stated that a grant of planning permission was to “enure for the benefit of the land” (see now section 33(1) of the Town and Country Planning Act 1971. Thus it was the clear policy of the original leglisation that planning permission should last without limitation of time.
Subsequent experience, however, showed that planning permission, if granted and not carried out, tended to become out of date and unsuitable for implementation. For this reason, the Town and Country Planning Act 1962 introduced two periods relevant to the duration of a planning permission.
First, it was provided that the permission was to cease to be valid if it was not taken up within five years by the carrying out of a “specific operation”. (These “specific operations” were widely defined and so it was not difficult for a developer to comply with this first time-limit.)
Second, it was provided that, if the local planning authority came to the conclusion that the development was being unduly and unjustifiably delayed it could issue a “completion notice” stating that the permission would cease to have effect unless the development were completed within 12 months (or some longer specified period). This “completion notice” required confirmation by the Secretary of State, who had a power to substitute a longer completion period. (This is still the law.)
In the case of “outline planning permission”, the position is now that an application for the approval of the “reserved matters” must be made within three years of the granting of the outline permission, and the development itself must be started within five years after obtaining outline planning permission or within two years after the approval of the reserved matters, whichever is the later.
Permission for one type of development, however, must now always be limited in time; under section 7 of the Town and Country Planning (Minerals) Act 1981, a time-limit has to be set to the duration of a planning permission to work minerals. (This will be 60 years, unless a longer or shorter period is expressly stipulated.)
In sum, therefore, the position is that planning permission enures for the benefit of land unless statute otherwise provides.
This position was recently emphasised by the decision of the House of Lords in Pioneer Aggregates (UK) Ltd v Secretary of State for the Environment [4] 2 All ER 358. In that case Lord Scarman said:
Viewed as a question of principle, therefore, the introduction in planning law of a doctrine of abandonment by election of the landowner (or occupier) cannot, in my judgment be justified.
At first glance, however, it may seem that this decision is inconsistent with several previous reported cases. For example, in Hartley v Minister of Housing and Local Government [9] 3 All ER 1658 Lord Denning MR stated:
I think that when a man ceases to use a site for a particular purpose and lets it remain unused for a considerable time, then the proper inference may be that he has abandoned the former use. Once abandoned, he cannot start to use the site again, unless he gets planning permission.
And also:
The question in all such cases is simply this: has the cessation of use (followed by non-use) been merely temporary, or did it amount to an abandonment; if it was merely temporary, the previous use can be resumed without planning permission being obtained. If the land has remained unused for a considerable time, in such circumstances that a reasonable man might conclude that the previous use had been abandoned, then the tribunal may hold it to have been abandoned.
In Pioneer Aggregates Lord Scarman himself recognised this problem and stated:
There are, however … number of reported judicial decisions, which, at first sight and before analysis might seem to suggest that there is room in planning law for a principle, or an exception, allowing the extinguishment of a planning permission by abandonment.
It is interesting to follow the reasoning with which Lord Scarman distinguished those judicial decisions. He identified three classes of case:
The first class of case is concerned not with planning permission but with established uses. This situation covers the Hartley case (mentioned above). The use in that case was an established use, because it had started before 1964. As Lord Scarman observed, the Hartley case “was not a case of abandoning planning permission”. It was a case where the minister was entitled to find, as a fact, that the previous use had been abandoned by the owner or occupier of the land. Planning permission had never been granted for the use in question.
The second class of case covers those situations where an existing planning unit disappears and a new one is created. An example of this situation arose in Petticoat Lane Rentals Ltd v Secretary of State for the Environment [1] 2 All ER 793. In this case there was an established right to use a site for the putting up of stalls on Sundays. Planning permission was subsequently granted (and implemented) to erect an office building supported by pillars and releasing the space underneath for a car park. It was held that the right to use the space under the building for stalls on Sundays has been lost because of the new development. This was so because the planning permission had created a new planning unit. Lord Parker remarked in another case belonging to the same class (Prosser v Minister of Housing and Local Government (1968) 67 LGR 109):
The planning history of this site, as it were, seems to me to begin afresh … with the grant of this permission which has been taken up and used.
In the Petticoat Lane case the previous use had disappeared, not because it was abandoned by the occupier but because the planning unit (the site enjoying the established use) had disappeared and had been replaced by an office building. The fact that the office building was erected on pillars, leaving a car-parking space underneath, was considered to be irrelevant.
In the recent case, South Staffordshire District Council v Secretary of State for the Environment [7] JPL 635, the Divisional Court, quoting with approval the Petticoat Lane, Prosser, and Pioneer Aggregates cases, stated that if a new planning unit (or a “new chapter in planning history”) came into existence, the right to the previous use disappeared.
The third class of case deals with planning permissions which cease to be effective. The leading case here is Pilkington v Secretary of State for the Environment [4] 1 All ER 283. An owner of a land was granted planning permission to build a bungalow on part of that land (site B). There was a condition attached to this permission that the bungalow should be the only house to be built on any part of the land. After building the bungalow, the owner of the land discovered the existence of an earlier planning permission to build a bungalow and a garage on another part of the same land (site A). That planning permission had contemplated the use of the remainder of the land as a smallholding. He had begun to build the second bungalow when he was served with an enforcement notice alleging a breach of planning control. The Divisional Court held that the two planning permissions could not stand side by side in respect of the same land once the development on site B had been carried out. The effect of building on site B was to make the previous planning permission incapable of implementation. Lord Widgery CJ quoted with approval dicta from Ellis v Worcestershire County Council (1961) 12 P&CR 178:
If permission were granted for the erection of a dwelling-house on a site, showing one acre of land as that to be occupied with that dwelling-house, and subsequently permission was applied for, and granted for, a dwelling-house on a different part of the same acre, which was again shown as the area to be occupied with the dwelling-house, it would, in my judgment, be impossible to construe these two permissions so as to permit the erection of two dwelling-houses on the same acre of land. The owner of the land has permission to build on either of the sites, but wherever he places his house it must be occupied with the whole acre (per Erskine Simes QC).
Thus it is important to realise (as Lord Widgery explained in the Pilkington case), that there is no doubt that the landowner is entitled to make any number of applications for planning permission in respect of the same land and the local authority is required to deal with them all, even if they are inconsistent with each other. If, however, two or more planning permissions are inconsistent with each other, only one of them may be implemented and the other (or others) will become incapable of being implemented.
By this analysis, Lord Scarman discerned and explained the three classes of decided cases, where established uses had been abandoned, or planning permissions had ceased to be capable of implementation. But none of these cases involved “abandonment” of any planning permission which had already been implemented.
In sum, therefore, the position is as follows:
(1) An established use may be abandoned and, once abandoned, cannot be resumed without the benefit of planning permission;
(2) A new planning unit will create a “new chapter in the planning history” of the site and the right to continue any previous use of that site will then disappear;
(3) If two or more planning permissions for the same land are inconsistent with each other, they cannot both be implemented and if one permission is taken up the other (or others) will cease to exist.
In all other circumstances, however, it must be remembered that the law of town and country planning is a statutory code and that statute alone dictates how a planning permission can be born and whether, if at all, it can be allowed to die. Generally speaking, there cannot be any room for a common law concept of “abandonment” in the case of a comprehensive statutory code.