Town and country planning–Rival applications for planning permission for proposed hypermarket on sites not far from each other–Whether applications should, as involving a ‘county matter,’ have been reserved for the county council–Clerk to borough council without authority purported to issue planning permission to one of the applicants–Effect of such action–‘Ratification’ by borough council–Purported grant of permission a complete nullity–Permission of no effect in hands of bona fide holder–Slough Estates Ltd v Slough Borough Council distinguished–Action incapable of ratification–Various points of planning law discussed–Decision of Sir Douglas Frank in favour of borough council and recipient of permission reversed
This was an
appeal from a decision of Sir Douglas Frank QC, sitting as a deputy judge of
the Queen’s Bench Division, in an action by Co-operative Retail Services Ltd
against the Taff-Ely Borough Council and Tesco Stores Ltd, claiming that a
purported planning permission for a hypermarket in favour of Tesco Stores Ltd
was null and void. Sir Douglas Frank gave judgment in favour of the defendant
borough council and Tesco Stores Ltd. The site to which the purported
permission related was on land at Gellihirion Farm, Upper Boat, Tre-forest,
Mid-Glamorgan. The proceedings were begun by Co-operative Retail Services Ltd
as plaintiffs. Subsequently the plaintiffs obtained the Attorney-General’s flat
and the action became a relator action.
L Read QC and
J C Harper (instructed by Gellatlys) appeared on behalf of the appellants; G
Eyre QC and V Pugh (instructed by G Hockin, clerk of the borough council)
represented the Borough Council of Taff-Ely, respondents; L J Davies QC, G
Langley and W Featherby (instructed by Berwin Leighton) represented Tesco
Stores Ltd, respondents; Harry Woolf and D Latham (instructed by the Treasury
Solicitor) appeared with the leave of the court on behalf of the Department of
the Environment. Sir Robert McAlpine & Sons (South Wales) Ltd and
Mid-Glamorgan County Council had been defendants at one time, but the action
had been discontinued against them and they took no part in the appeal
proceedings.
Giving
judgment, LORD DENNING MR said: Superstores are coming into fashion. They are
stores built on the outskirts of a town. One storey with many shops surrounded
by a capacious car park. The shoppers drive out to them and do all their
shopping in the one place.
This case
concerns two planning applications for a superstore. Two rival concerns
proposed to set up a superstore in the outskirts of Pontypridd in the Borough
of Taff-Ely. Each of the two concerns was looking for a suitable site. Only one
superstore would be allowed. So each wanted to get its own planning permission
and so outdo the other. One concern was the Co-operative Retail Services Ltd.
They had their eyes on a piece of rough grazing land at Heol-y-Bwnsy. On
October 17 1975 Co-operative Retail Services applied for outline permission to
develop it as a ‘trading centre for retail outlet with parking
facilities.’ I will call it the ‘Co-op
site.’ The other concern was Sir Robert
McAlpine Ltd with Tesco in mind. They had their eyes on a piece of derelict
land at Gellihirion. It was about half a mile away from the Co-op site. On
March 16 1976 (five months behind their rivals) McAlpine applied for outline
permission to develop it as a ‘superstore, garden centre and petrol filling
station.’ I will call it the ‘Tesco
site.’ But it must be remembered that
Tesco Ltd were not the owners, nor were Sir Robert McAlpine, but only an
unknown company called Maidsfield Properties Ltd of Cardiff.
Up till the
present day Co-op have lost and Tesco have won. The Borough Council of Taff-Ely
(which is a district council) have refused the Co-op application and have
granted the Tesco application. A formal grant was issued on November 4 1976.
But that grant in favour of Tesco has been challenged. The question for us is
whether it was valid or not.
Outline of
planning control
Much of the
difficulty in the case arises because in 1975 there was a complete change in
the structure of planning control. Previously the local planning authority had
been the county council. They used to delegate some matters to the local
districts, but still the county was the planning authority: see section 1(1) of
the Town and Country Planning Act 1971. But when local government was
reorganised the planning structure was reorganised too. Each ‘county’ was a
large area comprising several ‘districts.’
The county council (here the Glamorganshire County Council) became the
planning authority for the county: and each district council (here the Borough
Council of Taff-Ely) became the planning authority for its district: see section
182 of the Local Government Act 1972. This was obviously capable of producing
many problems, because many applications would concern both the district and
the county. So the Act contained elaborate provisions so as to ascertain what
was a ‘district matter’ and what was a ‘county matter.’ These were set out in Schedule 16, paragraphs
15 to 33, to the Local Government Act 1972: and in the Town and Country
Planning General Development Order 1973 (1973 SI No 31) and in directions given
by the minister in the Town and Country Planning (Development Plans) Direction
1975: these came into operation on October 11 1975. That was only shortly
before the application for the superstore at Pontypridd. So all the local
authorities found themselves wading through schedules, orders and directions. I
sympathise much with them. I find myself in the same position as that described
by Harman LJ in his classic passage in Davy v Leeds Corporation
[1964] 1 WLR 1218 at pp 1224-5:
To reach a
conclusion on this matter involved the court in wading through a monstrous
legislative morass, staggering from stone to stone and ignoring the marsh gas
exhaling from the forest of schedules lining the way on each side. I regarded
it at one time, I must confess, as a slough of despond through which the court
would never drag its feet, but I have, by leaping from tussock to tussock as
best I might, eventually, pale and exhausted, reached the other side.
In an
endeavour to summarise the position, I would say this. In the first instance
every application for planning permission has to be made to the district
planning authority; but they have to send a copy of it straight on to the
county planning authority. If it ‘appears’ to the district planning authority
to relate to a ‘county matter,’ then the district planning authority cannot
grant permission themselves but must refer it to the county planning authority:
see paragraph 15(2) of Schedule 16 to the 1972 Act. Even if it appears to the
district planning authority to relate to a district matter and not a county
matter, nevertheless the county planning authority can step in and direct the
district planning authority as to how they are to determine it: see paragraph
19 of Schedule 16.
The criteria
for determining whether or not a matter is a ‘county matter’ are to be found in
paragraph 32. These are very difficult for anyone to understand. For one thing
it is
planning authority, such as the structure plan for the area, the development
plan, and statement of planning policy. In order to help the planning officers,
the Mid-Glamorgan County Council had issued a development control scheme in
which they advised that applications should be divided into three basic
catagories–1, 2 and 3–and gave advice as to what should happen to each
category.
There were
good grounds in this case for thinking that an application for a superstore
would be a ‘county matter’: for it might conflict with the fundamental
provisions of the development plan (paragraph 32(d)(ii) of Schedule 16) and it
might be inconsistent with the statement of policy adopted by the county
planning authority (paragraph 32(d)(iv)).
In March 1976,
when the Tesco application came before the planning officer of the district
council, he took the view that it was a ‘county matter.’ He placed it provisionally in a special
category 2. That meant that it should not be granted except by agreement with
the county council. In particular, if there was a difference between the
planning officers, there should be a subcommittee of county and district
members to consider the matter further.
Facts of
this case
On June 7 1976
the planning committee of the district council considered the application for
the Tesco site. They received the recommendation of the district council’s
planning officer in which he said that there was only one objector. It was the
county planning officer, who considered it premature and unnecessary in view of
similar development at Caerphilly. The district planning officer recommended
that planning permission in outline be granted. He added significantly:
If this
recommendation is accepted it will be necessary to refer the matter to a joint
meeting with Mid-Glamorgan County Council in accordance with the terms of the
agreed development control scheme.
The planning
committee appointed a subcommittee to consider the matter on the sites. On June
15 1976 the subcommittee met on the sites. They considered the planning
officer’s reports. They made their own report in these words:
After
inspecting the sites and following a discussion it was RECOMMENDED as follows:
(1) That the application (for the Co-op site)
be not granted for the reasons detailed in the planning officer’s report;
(2) That the application (for the Tesco site)
be granted in outline subject to the conditions detailed in the report;
and that the
planning officer take the necessary action.
On July 6 1976
the district council met and made this formal minute: The report of the
subcommittee ‘was considered and adopted.’
Now as I read
those minutes, there was not then a decision by the district council to
grant permission for the Tesco site. The district council only recommended that
the planning officer take the necessary action, that is, to refer the matter to
a joint meeting with the Mid-Glamorgan County Council in accordance with the
agreed development control scheme. That interpretation is borne out by a letter
of July 12 1976 which the district planning officer wrote to the county
planning officer:
In accordance
with the terms of the agreed development control scheme it will now be
necessary to convene a joint meeting between our respective authorities in view
of your recommendation to reject the application.
Soon
afterwards, on July 30 1976, the owner of the Tesco site agreed to sell it for
£500,000 to Tesco, who paid, a deposit of £50,000, but reserved liberty to
rescind it if no planning permission was issued on or before March 25 1977. The
joint meeting of the two authorities was arranged for Monday September 27 1976.
The county council representatives all came, but only one of the district
council representatives. So there was no quorum and no business could be
transacted. It was agreed that consideration of the matter be deferred pending
the receipt of a further report.
The
bombshell
Now there came
a bombshell into the offices of the district council. On October 22 1976 the
solicitors for the owner of the Tesco site asserted that the district council
had on July 6 1976 resolved to grant planning permission for the Tesco site,
and had wrongfully failed to issue the appropriate grant of permission. This
was a vital matter for the owner of the Tesco site for two reasons. (1) He
wanted to get his £500,000 for the land; and (2) he wanted the grant to be
dated July 6 1976. This was because after August 1 1976 there was a tax in the
shape of a land development charge payable. The solicitors said they had taken
legal advice. They threatened to bring proceedings for mandamus and also to
refer the matter to the local authority ombudsman; and also to claim damages in
excess of £250,000. But they did not make it clear for whom they were acting.
The clerk to the district council thought they were acting for Tesco, whereas
in fact they were acting for the owner of the site.
The shaken
clerk
The clerk to
the district council was shaken to the core by this threat. Now he knew that
the county council had arranged to consider the Tesco application on November
12 1976. He knew they were likely to refuse it. He thought that if they did,
his district council might be liable in damages. So he took a great deal on
himself. On November 4 1976 he himself issued the formal permission for
development. He had received no authority from the council to issue it. He took
it on himself. He got a printed form headed ‘Permission for Development.’ He filled in all the details, signed it, and
back-dated it to July 6 1976. It ran:
Taff-Ely
Borough Council as the local planning authority hereby grant permission for the
proposed development. . . .
Dated the 6th
day of July 1976.
(Signed) G
HOCKIN
He sent it
round by hand that very morning to the solicitors for the Tesco application,
who wrote to their client in these words:
Tesco Stores Limited–
Land at
Pontypridd
With a sense
of triumph I produce herewith in pursuance of the contract a copy of the
planning permission. . . .
It was indeed a
triumph. He would get from Tesco £500,000 for the owner of the site: and he had
got a grant dated July 6 1976, which saved any land development charge.
On the next
day the clerk to the district council wrote this illuminating report to the
finance committee of the district council. He gave his reasons frankly:
It was
necessary to act promptly to avoid the possibility of the county council taking
advantage of section 12 of the 16th Schedule to the 1972 Act giving their
statutory declaration to the district planning authority as to how the district
planning authority are to determine any particular application because, if that
notice had been served on the district council, the district council’s hands
would have been tied irrevocably and the bill would have fallen as a burden on
the ratepayers of this Borough.
The grant of
permission was duly shown to Tesco. They were satisfied with it: and on the
faith of it, on December 6 1976 they bought the site from the owner and paid
£500,000 for it. The newspapers in South Wales got to know about all this.
There was a tremendous hubbub in the press. The district council attempted to
put this right. The clerk was no doubt anxious about his position in issuing
the planning permission without specific authority. So he made a long report to
the full district council on December 14 1976. They then resolved:
That the
reports of the officers be accepted; that the action taken by the clerk in
issuing the planning consent be confirmed, and that it be recorded that there
is no reflection on the integrity and diligence of the officers of the
authority.
Sir Douglas
Frank QC made a stern comment. He said:
Although the
clerk’s integrity is not in question, I find it impossible to justify the
deliberate flouting of the agreement with the county
clerk to the county council was right to be incensed.
The Co-op
take action
The
Co-operative Retail Services Ltd were much aggrieved by all that had happened.
Their own application had been turned down by the district council on July 6
1976. They had appealed to the minister. But there was room for only one superstore
near Pontypridd. Their own appeal would inevitably be rejected if the Tesco
grant were valid. So on December 30 1976 the Co-op issued a writ in their own
name claiming that the grant to Tesco was invalid and of no effect. Soon
afterwards they realised that it was a matter of public concern. So they
related the facts to the Attorney-General: and he has granted his fiat for
relator proceedings. The trial judge, Sir Douglas Frank QC, has held that the
grant to Tesco was valid. There is now an appeal to this court.
Was the
‘grant’ valid?
To my mind the
purported ‘grant’ back-dated to July 6 1976 was utterly invalid. It would have
been valid if the district council on July 6 1976 had resolved on that day to
grant permission themselves for the Tesco site. But, reading all the minutes,
the district council did not grant permission on that day. It appears from the
report of the planning officer that this case came within category 2–and that
no grant should be made except after consultation with the county council.
Arrangements were made accordingly for a joint meeting on September 27 1976.
That was fruitless for want of a quorum. So the next step was to wait till
November 12 1976 when the county council would consider the matter. When the
clerk to the district council on November 4 1976 issued the grant of
permission, he did so without any authority. He did it because he was shattered
by the bombshell. He thought that the district council might be liable in a
huge sum. So he deliberately issued the permission before the county council
could consider the matter. That was an entirely mistaken step by him.
Must it be
taken at its face value?
It was argued
that, despite its invalidity, the printed grant of permission signed by the
clerk was good in the hands of any bona fide holder of it. Tesco (who bought
the land from the owner) were bona fide holders of the grant and should be
entitled to rely on it. Reliance was placed on my words in Slough Estates
Ltd v Slough Borough Council [1969] 2 Ch 305 at p 315:
The grant of
planning permission has to be in writing . . . and it runs with the land. The
grant is not made when the county council resolve to give permission. It is
only made when their clerk, on their authority, issues the permission to the
applicant. Seeing that it has to be in writing, you can only look to the
permission itself and the documents incorporated in it.
And on the
words of Lord Reid in the House of Lords [1971] AC 958 at p 962 when he said
that a written grant of planning permission ‘is available to purchasers from
the person who originally obtained the permission. They may have no means of
discovering what facts were known to the planning authority.’ Those words are truly applicable to a grant
of planning permission which has been authorised by the planning authority. But
they have no application to a grant which has never been authorised: and is
issued by the clerk of his own head. It is then no better than a grant which
was issued by a mistake–issuing a grant instead of a refusal, as in Norfolk
County Council v Secretary of State for the Environment [1973] 1 WLR
1400; or when the signature of the clerk has been forged or written by a
subordinate without any authority whatever. In all these cases the purported
grant is ultra vires and void and of no legal effect whatever. It is
true that until the reason for its invalidity is discovered–and pronounced upon
by the courts–people may in good faith have acted on it. The courts may in
their discretion allow these actions to stand as between innocent third persons.
But that does not serve to validate the invalidity or to resurrect the nullity:
see the discussion by Professor Wade in his book on Administrative Law,
4th ed, pp 296-301.
Applied to
this case the grant of planning permission was ultra vires and void. So
Tesco cannot rely on it. They cannot build a superstore on the faith of it. But
the conveyance of the site by the owner may have been good: unless it can be
avoided on the ground of mutual mistake–or some other ground; or damages
obtained from someone or other.
The
supposed ratification
It was
suggested that the resolution of the district council on December 14 1976
amounted to a ratification of the clerk’s action on November 4 1976. This
cannot be right. It only ‘confirmed’ the clerk’s action. In any case, however,
an act which is ultra vires and void cannot be ratified: see Ashbury
Railway Carriage and Iron Co v Riche (1875) LR 7 HL 653. The
district council could not possibly retrospectively validate the permission–so
as to make it speak as of July 6 1976.
Paragraph
51
I ought to say
a word about paragraph 51 of Schedule 16 to the Local Government Act 1972. That
is inserted so as to cope with cases where the two planning authorities have
got mixed up–as to which of them should grant planning permission. In the
complexities of the statute, a district council may grant planning permission
when it should have been the county council or vice versa. Paragraph 51
provides that the validity of it shall not be challenged on the ground that it
should have been done by the other. It has no application to a case where
neither of them had power to do it. Nor to the present case where the grant was
entirely unauthorised and of no effect. The validity of the grant is here
challenged on the ground that it was ultra vires: not on the ground that
the other should have done it.
Conclusion
Underlying
this case there is an important principle of planning law. It is that a grant
of planning permission is made in the public interest–so as to ensure that the
amenities of our countryside are preserved for the good of all. The protection
of the public interest is entrusted to the representative bodies and to the
ministers. It would be quite wrong that it should be pre-empted by a mistaken
issue by a clerk of a printed form–without any authority in that behalf. When
such a mistake is brought to the attention of the court by the
Attorney-General, or anyone else with a sufficient interest, the court can and
should declare the grant to be void and of no effect. It does not follow that
all the consequences that follow are void also. Thus the conveyance here by the
owners to Tesco is not automatically avoided; that and other consequences must
be left to be worked out by the parties themselves. But so far as the
representative bodies themselves are concerned, they should not be bound by
mistakes made by the clerk or people in the office–when the result would be to
damage the interests of the public at large.
My conclusion
is therefore that the grant of permission of the Tesco site was invalid and a
nullity. The court should grant a declaration accordingly. It follows that the
application for planning permission has never been determined. This opens the
way to a just solution. The minister should call in both applications–both the
Co-op and Tesco–and should determine them on their merits.
In these
circumstances it is unnecessary to go on and consider all the nice points of
planning law which were canvassed before us. I would only say that I agree with
all that Ormrod LJ and Browne LJ say about these.
ORMROD LJ and
BROWNE LJ delivered concurring judgments.
The appeal was allowed and declaration made that
the borough council did not resolve to grant planning permission and that the
notice given on November 4, but dated July 6 1976, purporting to grant planning
permission, was of no effect. The appellants were awarded costs against both
the borough council and Tesco Stores Ltd, the allocation of costs between them
to be dealt with in contribution proceedings. The Department of the Environment
was ordered to bear its own costs. Leave was given to appeal to the House of
Lords.